Howton v. Mathias, 6 Div. 280

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 73 So. 92,197 Ala. 457
• Parties: HOWTON v. MATHIAS.
• Docket Number: 6 Div. 280
• Decision Date: 16 November 1916

73 So. 92

197 Ala. 457

HOWTON
v.
MATHIAS.

6 Div. 280

Supreme Court of Alabama

November 16, 1916

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Trover and assumpsit by Henry Mathias against J.H. Howton. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449. Affirmed. [73 So. 93]

Estes, Jones & Welch, of Bessemer, for appellant.

Hugh Lester, of Birmingham, for appellee.

THOMAS, J.

The trial was had on the common counts and a count in trover. There was a judgment for the plaintiff.

Plaintiff's version of his relation with the defendant was that during the years 1911, 1912, and 1913 he lived on defendant's "Cook Place"; that he bought of defendant a mule and a wagon and harness for $212.50, and worked defendant's land on shares; that is, plaintiff furnished his own team and cultivated the land, and defendant was to receive one-third of the cotton and one-fourth of the corn raised by plaintiff on the place. Defendant testified that during the year 1911 plaintiff worked defendant's place on halves, and in 1912 and 1913 was under contract to pay defendant one-third of the corn and one-fourth of the cotton as rent.

In an action claiming damages for conversion, a much less specific description will suffice than where the action is for the recovery of specific chattels. In the former it is enough to allege the nature and kind of chattel referred to and the quantity or number converted. Moody v. Keener, 7 Port. 218; Joseph v. Henderson, 95 Ala. 213, 10 So. 843; Hooper v. Dorsey, 5 Ala.App. 463, 58 So. 951; Beaumont v. Yantz, 1 Ill. 26; Richardson v. Brewer, 81 Ind. 107; 38 Cyc. 1079, 2067 (4). For analogous rule in trespass, see Syson Timber Co. v. Dickens, 146 Ala. 471, 40 So. 753; W.U. Tel. Co. v. Dickens, 148 Ala. 480, 41 So. 469; B.L. & I.Co. v. Jenkins, 111 Ala. 135, 18 So. 565, 56 Am.St.Rep. 26; Jean v. Sandiford, 39 Ala. 317; 2 Chitty on Pl. 609; 31 Ency.Pl. 1077. In the instant case the description of the wagon, three milch cows, five yearlings, and the corn and fodder was as specific as their nature would permit. Bowen v. Hamilton, 73 So. 5; Hooper v. Dorsey, supra.

The sale, destruction, or other disposition of things held in common by one joint tenant, or tenant in common, so as to exclude the right of the other, is a conversion for which trover may be maintained by his co-owner. Perminter v. Kelly, 18 Ala. 716, 54 Am.Dec. 177; Smyth v. Tankersley, 20 Ala. 212, 56 Am.Dec. 193; Allen v. Harper, 26 Ala. 686; Williamson v. Nolen, 34 Ala. 167; Russell v. Russell, 62 Ala. 48; Sullivan v. Lawler, 72 Ala. 74; Steiner Bros. & Co. v. Tranum, 98 Ala. 315, 13 So. 365; Moore v. Walker, 124 Ala. 199, 202, 26 So. 984; 2 Cooley on Torts (3d Ed.) (533), 875.

Count A was not demurrable for insufficient description of the money alleged to have been converted. The description was as accurate as was practicable to make it, viz.:

"The money obtained by defendant for the sale of, to wit, plaintiff's three-quarters interest in, to wit, 15 bales of cotton." 38 Cyc. 2015, 2023 (13); 21 Enc.Pl. &amp Pr. 1021; 28 Am [73 So. 94] & Eng.Ency.Law (2d Ed.) 652; Moody v. Keener, supra Hunnicutt v. Higginbotham, 138 Ala. 472, 35 So. 469 100 Am.St.Rep. 45; Swope v. Sherman, 7 Ala.App. 210, 60 So. 474.

The refusing to pay over to plaintiff of his part of the proceeds of the sale of the joint property was, to the extent of his interest, a conversion of the proceeds. Johnson v. McFry, 13 Ala.App. 619, 68 So. 718; Lummus Cotton Gin Co. v. Walker, 70 So. 754; Taylor v. Walker, 70 So. 754; Taylor v. Dwyer, 129 Ala. 325, 29 So. 692; Dixie F. Co. v. Teasley (App.) 69 So. 988.

The allegation of the count as to the time of conversion was under a videlicet (Blair v. Riddle, 3 Ala.App. 292, 57 So. 382; Kilgore & Son v. Shannon & Co., 6 Ala.App. 537, 60 So. 520; Williams v. McKissack, 125 Ala. 544, 27 So. 922), and sufficiently showed that the conversion was at some time prior to the commencement of the suit and within the statutory limitation in which the action can be brought (Corona Coal & Iron Co. v. Bryan, 171 Ala. 86, 54 So. 522, Ann.Cas.1913A, 878). The just rule of the Bryan Case that every suit for conversion must depend upon its own particular facts as to how definite and certain the averment of time of the conversation can be made, and that the pleading in each case is required to allege the time as nearly as practicable, in order to correspond with the proof and not to lead to variance, is supported by the earlier decisions. Russell v. Russell, supra.

The authority relied on by appellant's counsel involved the conversion of cotton grown during a given year, and the only averment as to the time of conversion was that contained in the expression "after the same was grown and raised *** converted the same to his own use." From such averment it could not be said that the conversion was prior to the commencement of the suit, and the demurrer to the complaint was properly sustained in Tallassee Falls Mfg. Co. v. First National Bank, 159 Ala. 315, 49 So. 246.

What we have said of laying the time under a videlicet in no wise conflicts with U.S.H. & A. Ins. Co. v. Savage, 185 Ala. 235, 64 So. 340, and B.R., L. & P. Co. v. Lide, 177 Ala. 400, 58 So. 990. In the Savage Case the question decided was the materiality of the allegation as to the term of the life insurance policy that was sued on, as it might present a variance in the proof. In the Lide Case the variance on which the ruling was invoked was as to the locus of the injury, and it was held that under the facts of that case it was immaterial whether it occurred while plaintiff was alighting at Fourteenth street or Twenty-Fourth street, while traveling on defendant's car along Eleventh avenue, in Birmingham. The material fact was the negligence of the defendant on the occasion when the plaintiff was injured. Thus the Lide Case is an authority for the conclusion we have here reached.

The material fact in the case at bar was the conversion prior to the commencement of the suit and within the statutory limitation of plaintiff's property for which the action was brought. It will be observed that the actions in the Blair, Kilgore, and Williams Cases, supra, were in trover. In the Williams Case the holding was that the amendment of the complaint by the addition of a new count which introduced no new matter or cause of action, but merely varied the averment of the original complaint as to the time of the alleged conversion, related back to the time of the institution of the suit, and that the statute of limitations ran against the amended complaint only as to that time. The time was averred positively in the two counts, respectively, as being February 17, 1893, and December 23, 1892; and it was held that the plaintiff was bound to prove the time as alleged with certainty in one of the counts, and presented a variance as to the count not so proven.

Count A claims damages for the conversion of the specified items of personal property, and it further avers "that said conversion was accompanied by acts of insults; wherefore he also claims punitive damages." We are not furnished with a case in this state where punitive damages were claimed or allowed in a suit in trover.

Ordinarily the measure of damages in an action of trover is the fair market value of the property at and from the time of the conversion to the time of the trial; but if the evidence shows fluctuation in value after the conversion, the value may be fixed at the highest price between the conversion and the trial. Jones v. White, 189 Ala. 622, 66 So. 605; Torrey v. Burney, 113 Ala. 496, 21 So. 348. "Under certain conditions he may recover more than that amount." Boutwell v. Parker, 124 Ala. 341, 27 So. 309; Linam v. Reeves, 68 Ala. 89; Ross v. Malone, 97 Ala. 529, 12 So. 182; A.G.S.R.R. Co. v. Tapia, 94 Ala. 226, 10 So. 236; Pruett v. Williams, 156 Ala. 346, 353, 47 So. 318; Boggan v. Bennett, 102 Ala. 400, 14 So. 742; Massey v. Fain, 1 Ala.App. 424, 55 So. 936; Field on Damages, §§ 796, 797.

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