Gulf, C. & S. F. R. Co. v. Pratt

• Decision Date: 03 February 1916
• Docket Number: (No. 35.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 183 S.W. 103
• Parties: GULF, C. & S. F. R. CO. v. PRATT.
• Court: Texas Court of Appeals

183 S.W. 103

GULF, C. & S. F. R. CO. v. PRATT.

(No. 35.)^*

Court of Civil Appeals of Texas. Beaumont.

February 3, 1916.

Rehearing Denied February 24, 1916.

Appeal from District Court, Sabine County; A. E. Davis, Judge.

Action by G. E. Pratt against the Gulf, Colorado & Santa Fé Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

F. J. & C. T. Duff, of Beaumont, and Hamilton & Hamilton, of Hemphill, for appellant. W. F. Goodrich and J. W. Minton, both of Hemphill, for appellee.

CONLEY, C. J.

On August 31, 1914, G. E. Pratt, appellee, filed a petition in the district court of Sabine county, Tex., against the Gulf, Colorado & Santa Fé Railroad Company, alleging a cause of action substantially as follows: That on or about August 31, 1913, the appellee owned a certain Studebaker automobile, being a seven-passenger, 35 horse power car, 1913 model, worth $1,171.50; that on or about the 1st day of August, 1913, the appellant, Gulf, Colorado & Santa Fé Railroad Company, took possession of said automobile, and converted the same to its own use and benefit, and removed the same out of Sabine county, and has continuously had same in its possession and under its dominion and control; that said conversion was without appellee's consent, and appellant took possession of said automobile at Bronson, Tex., and transported it to Beaumont. Appellee prayed for damages in the sum of $1,171.50.

The appellant answered by general demurrer, and specially denied that it was guilty of conversion, and by special answer it alleged that it, through no negligence or fault on its part, damaged said automobile belonging to appellee; that for the purpose of repairing said car it removed the same to Beaumont, where it had an expert mechanic to repair the car, and put it in good condition; that since said car has been repaired it has been tendered back to the appellee, and request made that appellee advise it what disposition he wanted made of the same, but that appellee had refused to accept said car or notify appellant what he wished done with it.

A jury was waived, and matters of fact and law were submitted to the court. The court, on the 17th of April, 1915, rendered judgment in favor of appellee for the full amount sued for, to wit, $1,171.50, with interest at 6 per cent. per annum from August 1, 1913, from which judgment appellant has duly perfected an appeal to this court.

Under the first assignment of error appellant contends, in substance, that the evidence is undisputed that at the time the appellant herein took said automobile at Bronson and removed it to Beaumont its purpose in taking the automobile was to have same repaired; the evidence further showing that the appellee knew that the appellant was going to remove the automobile from Bronson to Beaumont for such purposes, and acquiesced and consented to said removal, and that therefore the court erred in rendering judgment in favor of plaintiff in a suit for conversion.

"Conversion" is defined to be "any unauthorized act which deprives a man of his property permanently or for a definite length of time." France v. Gibson, 101 S. W. 537; Union Stockyards et al. v. Mallory et al., 157 Ill. 554, 41 N. E. 888, 48 Am. St. Rep. 341.

The legal wrong denominated a "conversion" is:

"Any unauthorized act of dominion or ownership exercised by one person over personal property belonging to another. * * * Acts of conversion have been classified as follows: (1) A taking from the owner without consent; (2) an unwarranted assumption of ownership; (3) an illegal use or abuse of the chattel; and (4) a wrongful detention after demand. It is a well-settled rule that, if the owner expressly or impliedly assents to or ratifies the taking, use, or disposition of his property, he cannot recover for conversion thereof. * * *"

There must not only be an intent to convert, but it must be accompanied by positive act of conversion. However, if the act was unauthorized by the owner, an intent to convert will be conclusively presumed. 38 Cyc. 2005-2010.

An analysis of the evidence in the case justifies the following conclusions, which are practically undisputed: On July 18, 1913, the railroad company at Bronson, Tex., damaged appellee's automobile, which at the time was being operated by a son of the appellee. The accident happened on the company's right of way over one of the public crossings at Bronson. After the accident the person in charge of the car left it on the right of way, where it...