Fulks v. Fulks
| Decision Date | 20 November 1953 |
| Citation | 121 N.E.2d 180,95 Ohio App. 515 |
| Parties | , 54 O.O. 131 FULKS v. FULKS et al. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. Any wrongful or unauthorized act of control or exercise of dominion over the personal property of another which deprives the owner of possession of his property constitutes a conversion even though the wrongdoer may be acting under misapprehension or mistake, and, in an action predicated upon such conversion, it is unnecessary for the owner to show wrongful purpose, intent, or an assertion of ownership by the wrongdoer over the converted property.
2. There is no inflexible rule as to the measure of damages for a wrongful conversion, and where properly pleaded, money expended for attorney fees in recovering possession of the converted property is includable as an item of special damage.
David E. Crowe, Ironton, for appellant.
O. E. Irish and Riley & Riley, Ironton, for appellee.
The plaintiff-appellee brought an action in the Common Pleas Court of Lawrence County for damages in which he claims that he was the owner of a steer worth $160; that the defendants converted the steer to their own use, loaded it into a truck and hauled it to the Catlettsburg, Kentucky, stock market and sold it to H. Van Bibber of Greenup, Kentucky; that in his efforts to regain possession of the steer, the plaintiff lost earnings in the sum of $90, expended $200 in pursuit of his property, paid attorney fees in repossessing the steer in the sum of $125, paid to Van Bibber, who purchased the steer, the sum of $160 for the return of the steer and other expenses in hauling the steer from Greenup, Kentucky, to his farm in Lawrence County, Ohio, and veterinary fees, making a total of $692, for which he claims judgment against the defendants.
The answer is a general denial.
At the close of all the evidence, on motion of the defendant Grover Fulks, the case was dismissed as to him. The verdict of the jury was in favor of the plaintiff against the defendant Maggie Fulks in the sum of $500. The court overruled the defendant Maggie Fulks' motions for judgment notwithstanding the verdict and her motion for a new trial and entered judgment on the verdict. It is to reverse this judgment that the case has been appealed to this court.
The evidence shows that these parties are closely related and live on neighboring farms in the same community; that on August 28, 1952, the defendant Maggie Fulks and her husband, O. R. Fulks, sold several head of cattle consisting of steers and heifers; that the cattle which were sold were selected from a herd in their pasture and loaded into a truck driven by Grover Fulks, their son; that the defendant Maggie Fulks, her husband, O. R. Fulks, her son, Grover Fulks, and Ronnie Fulks, a brother of the plaintiff assisted in loading the cattle, including the steer in question, into the truck; that the steers were sold in the market in the name of O. R. Fulks, and the heifers were sold in the market in the name of Maggie Fulks, and each received a check for the cattle so sold; that a few days after the sale of the cattle, the plaintiff, Curtis D. Fulks, missed a steer from his farm, began a search for the steer and sometime later, on the Van Bibber farm in Kentucky, identified one of the steers which had been sold by O. R. Fulks and Maggie Fulks as his lost steer; that after considerable effort and reimbursement of the purchase price the steer was repossessed by the plaintiff; that the plaintiff then filed criminal charges against the defendant Grover Fulks in the Municipal Court of Ironton, Ohio, and after a hearing in that court the charges were dismissed and the defendant Grover Fulks released; and that the plaintiff then instituted this action in the Common Pleas Court of Lawrence County against Grover Fulks and Maggie Fulks as defendants for conversion of the steer.
The two assignments of error relied upon and stressed in defendant's brief are that the evidence is insufficient to establish conversion of the steer by the defendant Maggie Fulks, and that the trial court erred in permitting attorneys' fees expended by the plaintiff in repossessing the steer to be considered as an item of damages by the jury.
The evidence which the plaintiff claims is sufficient to establish a cause of action for conversion against the defendant Maggie Fulks is found on pages 17 and 18 of the record, where the testimony of the defendant Maggie Fulks is as follows:
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