Heath v. Perky Brothers Transfer & Storage Co.

• Decision Date: 05 January 1942
• Docket Number: No. 19966.,19966.
• Citation: 157 S.W.2d 600
• Court: Missouri Court of Appeals
• Parties: HEATH v. PERKY BROTHERS TRANSFER & STORAGE CO.

157 S.W.2d 600

HEATH v. PERKY BROTHERS TRANSFER & STORAGE CO.

No. 19966.

Kansas City Court of Appeals. Missouri.

January 5, 1942.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be published in State Reports".

Action by W. Rea Heath against Perky Brothers Transfer & Storage Company for the value of certain personal property claimed to have been converted by defendant to its own use without authority of law. From a judgment for defendant, plaintiff appeals.

Affirmed.

P. L. Dwinnell, of Kansas City, for appellant.

W. H. H. Piatt, Michael W. O'Hern, and John J. Brauch, all of Kansas City, for respondent.

SPERRY, Commissioner.

Plaintiff, W. Rea Heath, sued defendant, Perky Brothers Transfer and Storage Company, for the value of certain of his personal property which he claims defendant took and converted to its own use without authority of law. Trial was to the court without aid of a jury. No declarations of law or findings of fact were asked by either party, and none were made or found. Judgment was for defendant and plaintiff appeals.

Where a jury is waived, a case is tried before the court, and no declarations of law or findings of fact are requested or made the judgment must be affirmed if there is any substantial evidence to support it on any correct theory. Weisguth v. Burke, Mo.App., 138 S.W.2d 689, loc. cit. 690; State v. Kelly, Mo.App., 131 S.W.2d 371, loc. cit. 373; Paulette v. Sernes, Mo. App., 103 S.W.2d 573, loc. cit. 577.

Plaintiff introduced evidence tending to prove that prior to September 12, 1922, he acquired a chattel mortgage on certain property owned by one Kite Fischer; that with consent of the mortgagor, he took possession of said property and received legal title thereto; that the value of said property was about $950; that same was located in a building at 1425-1427 East 18th St., Kansas City, on September 12, 1922; that agents of defendant, on said date, took said property into their possession and removed same from its then location, in its trucks; and that plaintiff has never recovered possession of same, or received the value thereof, although he has often demanded return of the property or payment of its value. The court overruled virtually all objections to evidence offered by plaintiff and received and heard all evidence offered by him.

On behalf of defendant there was evidence offered, both oral and documentary, tending to prove that it had been, since long prior to September 12, 1922, a bonded warehouse; that certain chattels were stored with it by the above...