Louisville & N.R. Co. v. Lawson

• Decision Date: 02 May 1889
• Citation: 11 S.W. 511,88 Ky. 496
• Parties: LOUISVILLE & N. R. CO. v. LAWSON.
• Court: Kentucky Court of Appeals

11 S.W. 511

88 Ky. 496

LOUISVILLE & N. R. CO. v. LAWSON.

Court of Appeals of Kentucky.

May 2, 1889

Appeal from circuit court, Warren county; W. L. REEVES, Judge.

"To be officially reported."

Action in the nature of trover and conversion by D. M. Lawson against the Louisville & Nashville Railroad Company. There was a judgment for plaintiff, from which defendant took an appeal to the superior court, where the judgment below was reversed on December 14, 1887. Appellee was granted an appeal to this court.

James A. Mitchell, H. W. Bruce, and Wm. Lindsay, for appellant.

John M Wilkins and Thos. H. Hines, for appellee.

HOLT J.

September 11, 1884, appellant's agent at Bowling Green, Ky notified the appellee that a box of goods had arrived there for him over its road, and that he must pay the freight and receive them. The next day he gave the money to pay the charges, and an order for them, to a drayman, who thereupon as is customery, paid the freight to the freight agent, taking from him what is known as an "expense receipt," which, when presented to the delivery clerk, authorized him to deliver the goods to the drayman. This the latter did, and demanded the goods, He was informed they were not there. During the following week or 10 days he made several such demands, and received the like answer upon each occasion. In point of fact they were there. The appellee was a merchant. The goods had been made to order for him, were of a particular character, and intended for the then fall trade. Thus the matter stood until December, 1884, when an agent of the consignor of the goods found them in the freight depot. The appellant then offered to deliver them to appellee. He refused to receive them, and brought this action, in the nature of trover, to recover their value in damages. They were worth, in Bowling Green, $240 or more on September 12, 1884. A trial resulted in a verdict for that sum. The defense was that the goods were in fact delivered to the drayman when first demanded, and taken in charge by him, but that he failed to remove them from the depot. This was the issue. The jury as to it found against the railroad company. They were, in substance, instructed to find for the appellee their full value, if they were not so delivered. This the appellant contends was error. The court refused upon its motion to tell the jury that a failure to deliver through negligence did not authorize a recovery of the value of the goods; and the principal question presented is the proper criterion of recovery,--the appellant contending that as it did not appear the goods had been molested, or that they had depreciated in value, the appellee could not treat it as a conversion, and recover their value, but must accept them, and sue for any damages sustained by the non-delivery.

It is suggested in argument that the petition is defective because it contains no positive averment of a conversion of the goods. It however avers that the appellant "failed and refused to deliver said goods;" also, "and, by the defendant's failure and refusal to deliver them as aforesaid, and by the unlawful conversion of said goods by defendant, and depriving plaintiff of them, he has been damaged in said sum." No objection was made to the petition, and even if it be technically defective in the respect urged, yet it was cured by the answer, because it says: "It denies that it has converted said goods, or has failed or refused to deliver the same." A demand and refusal do not constitute per se a conversion, but are merely prima facie evidence of it. If an actual conversion be not shown, then a rightful demand for and a wrongful refusal to...