Fed. Nat. Bank v. McDonald

• Decision Date: 06 December 1927
• Docket Number: Case Number: 18300
• Parties: FEDERAL NAT. BANK et al. v. McDONALD.
• Court: Oklahoma Supreme Court

1927 OK 461

263 P. 105

129 Okla. 75

FEDERAL NAT. BANK et al. v. McDONALD.

Case Number: 18300

Supreme Court of Oklahoma

Decided: December 6, 1927

Syllabus

¶0 1. Appeal and Error--Questions of Fact--Conclusiveness of Verdict--Conversion.

In an action for conversion, where the evidence is conflicting as to whether the defendant exerted acts of dominion over plaintiff's property wrongfully, the finding of the jury in favor of the plaintiff will not be disturbed where there is competent evidence which reasonably tends to support such finding.

2. Replevin--Property Held Under Bond in Replevin--Sale Pending Suit as "Conversion."

Where property is held by a party under bond in a replevin action, conditioned for the redelivery of the specific property in the event he should not prevail in the action, such property is to be considered in custodia legis, the same as if the actual possession was with the officer, and the sale of the property pending the suit, while in custodia legis, by the plaintiff, constitutes conversion.

3. Damages--Exemplary Damages---Proof Necessary of Fraud, Malice, or Oppression.

To entitle a plaintiff to recover exemplary damages in an action sounding in tort, the proof must show some element of fraud, malice, or oppression. The act which constitutes the cause of action must be actuated by or accompanied with some evil intent, or must be the result of such gross negligence--such disregard of another's rights--as is deemed equivalent to such intent.

4. Replevin--Recovery of Exemplary Damages for Conversion of Property Sustained.

Record examined, and held, the question of exemplary damages was properly submitted to the jury and its verdict is supported by competent evidence.

Abernathy & Howell, for plaintiffs in error.

Kenneth Kienzle, F. H. Reily, and Chas B. Hickok, for defendant in error.

MASON V. C. J.

¶1 The defendant in error, W. H. McDonald, recovered a judgment against the plaintiffs in error in the sum of $ 350 actual damages and $ 200 punitive damages for the conversion of certain personal property, from which the latter appeal.

¶2 The facts, as disclosed by the record, are substantially as follows: The plaintiff purchased the property involved herein from one Phillip Hibbs, who previously thereto had mortgaged the same to the defendant bank. It appears that the plaintiff had knowledge of such mortgage and that the bank had knowledge of said sale. Thereafter, the note secured by said mortgage became due and the bank placed it in the hands of the defendant John A. Armstrong, a constable, for collection, and he demanded payment of the plaintiff, which was refused. The testimony also discloses that Armstrong demanded an additional $ 10 as his fee in making the collection. The bank then commenced an action wherein Phillip Hibbs was made the sole defendant and a replevin affidavit and bond were executed and filed and replevin summons issued. None of this process was ever served upon Hibbs, it appearing that he was out of the county until just a short time prior to the time the instant case was commenced. The plaintiff herein was not made a party to that case, but the constable went to his place and attempted to locate and take possession of said property and some time thereafter located it in the possession of plaintiff's son-in-law, who was acting as plaintiff's agent, and took possession of it.

¶3 Plaintiff's evidence was that Armstrong took possession of said property forcibly and without the consent of the plaintiff or his agent and upon the fraudulent representation that he had a valid replevin process. This evidence however, was disputed by the defendants. After holding the property for 24 hours, during which time the plaintiff herein refused to file a redelivery bond, the defendant Armstrong delivered the property to the bank, which advertised the same for sale and sold it in the method prescribed for the foreclosure of a chattel mortgage.

¶4 Thereafter, the justice court attempted to render judgment in favor of the bank for possession of said property, although no service of summons had been had, and neither the plaintiff herein nor his agent were parties defendant.

¶5 The verdict of the jury in favor of the plaintiff necessarily implies a finding that the defendant Armstrong took said property from the agent of the plaintiff without permission or authority, and such finding being reasonably supported by competent evidence, it will not be disturbed by this court on appeal.

¶6 Although the record discloses that the plaintiff was not a party to said replevin action, yet if he had been and service of the replevin summons had been duly had upon him, the sale of the property by the bank before judgment in said action would constitute a conversion of the property. Salisbury v. First National Bank, 99 Okla. 138, 221 P. 444. The court, in that case, announced the rule in the syllabus as follows:

"Where property is held by a party under bond in a replevin action conditioned for the redelivery of the specific property in the event he should not prevail in the action, such property is to be considered in custodia legis, the same as if the actual possession was with the officer.

"Said property being in custodia legis, the proceeds of the sale thereof could not be applied as a credit upon the mortgage debt for the satisfaction of which the same was being replevined, in order to be foreclosed under a chattel mortgage, until such replevin action had been finally determined.

"The sale of property pending the suit, while in custodia legis, by the plaintiff, constitutes conversion. * * *"

¶7 It is urged that the trial court erred in admitting evidence on the part of the plaintiff over the objection of the defendants. It appears from the record that a vast amount of evidence was introduced which had very little, if any, bearing upon the real issues in the case, and the defendants objected to evidence which was introduced pertaining to the original transaction between Hibbs and the plaintiff and the bank, whereby the plaintiff purchased said property.

¶8 This evidence probably was not competent, but the court finally instructed the jury not to consider any evidence touching on said transaction, and for that reason we cannot see wherein the defendants were damaged thereby and the error, if any, in its...