Klam v. Koppel

Decision Date25 October 1941
Docket Number6830
Citation118 P.2d 729,63 Idaho 171
PartiesJOHN KLAM, Respondent, v. HARRY KOPPEL, Appellant
CourtIdaho Supreme Court

Rehearing denied November 22, 1941


1. Where there is an unauthorized removal and appropriation to one's own use of any of the substantial and essential parts of an entire chattel, such conversion will, if chattel is a complicated mechanism constructed to perform certain work, amount to a "conversion" of the whole, if the removal of such parts so impairs the chattel as to destroy its character as a whole and defeat its intended use.

2. "Conversion" is any distinct act of dominion wrongfully exerted over another's personal property in denial or inconsistent with his rights therein, such as a tortious taking of another's chattels, or any wrongful exercise or assumption of authority, personally or by procurement, over another's goods, depriving him of the possession, permanently or for an indefinite time.

3. Where thief sold and delivered stolen property to buyer and buyer received and undertook to assume dominion over the stolen property, both became "joint tort-feasors" and both became liable jointly in an action of trover and conversion to the owner, without regard to whether the buyer had prior knowledge of the fact that the thief had stolen the property.

4. One who buys property must, at his peril, ascertain the ownership, and, if he buys of one having no authority to sell, his taking possession in denial of owner's right is a "conversion."

5. Exemplary or punitive damages cannot be recovered, unless evidence shows clearly that wrongdoer's action was wanton, malicious, or gross and outrageous, or facts were such as to imply malice and oppression.

6. Evidence that one in taking parts of tractor at direction of defendant deliberately smashed some of it to pieces and broke a lot of it up with a sledge hammer, together with loading of the stolen parts in bottom of a car of scrap iron to be moved the next morning, sufficiently showed deliberate, wanton, and malicious conduct to support a verdict awarding exemplary damages to owner in action for conversion.

7. Where partnership engaged in junk business purchased parts of tractor which had been stolen by seller, owner from whom parts were stolen could sue copartners jointly or any member of the copartnership individually for the conversion. (I. C A. secs. 52-313, 52-315.)

8. If defendant came lawfully into possession of goods, a demand must be made upon him to make him a wrongdoer, but such demand need not be alleged unless, from the petition itself it should appear that defendant came lawfully into possession.

9. In case of a conversion by wrongful taking, it is not necessary to prove a demand and refusal, and intent of the party is immaterial.

10. In action for conversion, complaint was not required to allege a demand upon defendant for property alleged to have been converted, where it did not appear from complaint that defendant had come lawfully into possession of the property.

11. Although a complaint must allege facts sufficient to authorize the relief sought, allegations as to exemplary damages need not be set out separately; it being sufficient to show that the wrong complained of was inflicted with malice or oppression.

12. Where it appeared that, in removing parts of tractor, the tractor had been so badly injured and impaired as to render it valueless for use for which it was originally designed and that tractor was not capable of being repaired, owner was entitled to recover in action in trover for conversion of the tractor, without proving value of any of parts taken and converted.

13. Where there was no market value at time when and place where tractor was converted, owner was a competent witness as to its reasonable value.

14. In action in trover for conversion of tractor, where there was no market value at time when and place where tractor was converted, an instruction, which allowed recovery as damages of the "reasonable worth and value of such property as is shown by the evidence," was not erroneous on ground that it omitted to charge that only value recoverable was market value, and injected the element of "worth," thus going beyond actual market value.

15. In action in trover for conversion of a tractor, if defendant had desired an instruction that not every asportation of property of another will authorize recovery as for an unlawful conversion, it was defendant's duty to present such instruction to trial court.

16. In action in trover for conversion of a tractor, an instruction that a conversion, in the sense of the law of trover, consisted either in appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of plaintiff's right, or in withholding possession from the plaintiff, under a claim of title, inconsistent with his own, was not erroneous on ground that it omitted the essential element "in denial of the owner's right," when read in connection with other instructions.

17. Instructions must be read as a whole.

Rehearing denied November 22, 1941.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles E. Winstead, Judge.

Action in trover for the conversion of personal property. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to respondent.

Ariel L. Crowley and Willis C. Moffatt, for Appellant.

Where it is alleged that the whole of a machine was converted, and the proof shows it was taken apart by the owner and only part of it was converted, no recovery can be had unless the proof also shows the value of the parts actually taken. (New York Cent. R. Co. vs. Buckley Rubber Co., 187 N.E. 353, 99 Ind. A. 191; 65 C. J. 135; Walker vs. Johnson, 9 N.W. 632; See Carey vs. Lafferty, 59 Idaho 578, 86 P.2d 168; Hess vs. Hess, 41 Idaho 359, 239 P. 956.)

Conversion is a personal action, and the evidence clearly disclosing that the purchase of the broken parts by Idaho Junk House was made by some member of the partnership or its agents other than Harry Koppel in person, he is entitled to reversal of the judgment against him. (Handler vs. Perlberg, 158 N.Y.S. 706.)

Clear proof of wanton or malicious, gross, outrageous or other intolerable, fraudulent, malicious or oppressive conduct is a mandatory prerequisite to allowance of punitive damages. ( Gunnell vs. Largilliere Co., 46 Idaho 551, 269 P. 412; Unfried vs. Liebert, 20 Idaho 798, 119 P. 885.)

Frawley & Barnes, for Respondent.

"A conversion, in the sense of the law of trover, consists either in the appropriation of the thing to the party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or in defiance of the plaintiff's right, or in withholding the possession from the plaintiff, under a claim of title, inconsistent with his own." (Lee Tung vs. Burkhart, 59 Ore. 194, 116 P. 1066; Carter vs. Ketchum, supra; Federal Land Bank vs. McCloud, 52 Idaho 694 at 703, 20 P.2d 201.)

It is a settled rule in this state that the owner of property is a competent witness as to its value. (Garrett vs. Neitzel, 48 Idaho 727, at 731, 285 P. 472; Rankin vs. Caldwell, 15 Idaho 625, 99 P. 108; Kellar vs. Sproat, 35 Idaho 273, 205 P. 894.)

Exemplary or punitive damages may be allowed where the injury complained of is attended by the acts of the wrongdoer, which show willful malice, fraud, or gross negligence, and the purposes of awarding punitive or exemplary damages are to punish the person doing the wrongful act and to discourage such persons and others from similar conduct in the future. ( Unfried vs. Libert, 20 Idaho 708 at 728, 729; 119 P. 885; Gunnell vs. Largilliere Co., 46 Idaho 551 at 559; 269 P. 412; Restatement of the Law of Torts, American Law Institute, Vol. IV, par. 908, pp. 554-557; 17 C. J. "Damages," par. 268, p. 968.)

HOLDEN, J. Morgan, J., and Buckner, D.J., concur. AILSHIE, J., Mr. Chief Justice Budge, (dissenting in part). Givens, J., did not sit at the hearing or participate in the decision.



Respondent John Klam owns a ranch on the bench near the mouth of Grimes Creek in Boise County, where he has resided for about 34 years. In addition to the ranch he operates a small sawmill on More's Creek. November 4, 1935, Klam purchased a used Cleveland Cletrac 12-20 tractor for use on the ranch and in his sawmill, paying therefor the sum of $ 100.00. Before taking the tractor to his ranch he had it overhauled by the Sawtooth Company at a cost of $ 128.85. Later, on the ranch, he and his son made certain changes in the gears and installed new bearings at an additional cost of $ 37.00. Klam also installed another motor. He used the tractor on his ranch harrowing, haying, road building, pulling logs and rocks, and so on. At one time he lent it to a neighbor to pump water, for which the neighbor, a former tractor assembly man, did some additional work on it. In the spring of 1939, Klam and son removed the motor, radiator spring, frame supports and angle irons, and took them to his sawmill to supply power for sawing wood, leaving the tractor standing on his property in a field.

It appears that one Philip Gums had gathered scrapiron from an area around Idaho City and sold it to the Idaho Junk House located in Boise, and that upon bringing in his second load from that area, October 12, 1939, notified Harry Koppel appellant, he could find no more scrap-iron. Koppel then drew Gums a diagram indicating the approximate location of the tractor. By following the map Gums...

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