Major v. Berg
| Decision Date | 07 July 1936 |
| Docket Number | No. 23017.,23017. |
| Parties | MAJOR v. BERG et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Robert W. McElhinney, Judge.
"Not to be published in State Reports."
Action by Mrs. Janie D. Major against Theodore C. Berg and others. Judgment for plaintiff, and defendants appeal.
Reversed and remanded.
Harry F. Russell and Henry C. Hinkel, both of St. Louis, for appellants.
E. McD. Stevens, of Clayton, for respondent.
This is a suit in conversion, filed in the circuit court of the county of St. Louis, Mo.
The plaintiff alleged in her petition that on the 30th day of June, 1930, she was the lawful owner of personal property and furniture located in a house on Queen Ann Place, Glendale, St. Louis county, Mo., of the value of $2,500; that on the 7th day of July, 1930, the defendants, individually, and by and through their agents, servants, and employees, during the plaintiff's absence, and while said property was securely locked up, did unlawfully and forcibly enter upon the premises, as aforesaid, and did then and there forcibly and unlawfully remove said personal property from said premises, and have ever since held the same and converted the same to their own us. Plaintiff further alleged that the "action of defendants in entering upon plaintiff's premises without plaintiff's consent or lawful authority was done wickedly and maliciously and without authority in law," and prayed for punitive damages in the sum of $5,000.
The defendants Berg and the Jackson Moving & Storage Company filed general denials, and the Charter Loan Company filed an answer admitting its corporate existence, and further pleading that it was the holder and owner of a promissory note and mortgage executed by Theodore C. Berg and wife upon the personal property described in plaintiff's petition; that the mortgage was a valid lien, pleading a default on the 7th day of July, 1930, of payment thereunder; pleading its right to the possession of said personal property by reason of said mortgage.
The reply of plaintiff to the Charter Loan Company's answer pleads that the said Theodore C. Berg and wife had no authority to execute said promissory note or mortgage and had no interest in said personal property and were not the owners thereof; pleads that she gave defendants notice that their note and mortgage were executed without any authority of law, and warned defendants that if said property was sold she would hold the defendants liable in damages for same.
On the day of the trial, some two years later, the defendants, by leave of court, withdrew their answers and filed general demurrers to the amended petition on the ground that the amended petition stated no cause of action, which demurrers were overruled. Thereupon, by leave of court, the separate answers of the several defendants were refiled. The case proceeded to trial, which resulted in a verdict and judgment in favor of plaintiff against all of the defendants for the sum of $1,000 actual damages and $500 punitive damages. Defendants in due course appeal.
Appellants urge as a point for the reversal of the judgment that plaintiff's petition does not state facts sufficient to constitute a cause of action, in that it fails to aver that plaintiff was either in possession or entitled to the possession of the property at the time of the alleged conversion.
The rule still obtains that an action of trover as for conversion lies only when plaintiff, at the time of the conversion, had possession of the goods or had such property right in them as drew to it the right of possession. New First Nat. Bank v. Produce Co., 332 Mo. 163, 58 S. W.(2d) 742; Kalinowski v. M. A. Newhouse & Sons, Inc., (Mo.App.) 53 S.W. (2d) 1094; Sebastian County Coal & Mining Co. v. Fidelity Fuel Co., 310 Mo. 158, 274 S.W. 774; St. Louis Catering Co. v. Glancy, 294 Mo. 438, 242 S.W. 392. In the instant case we construe the petition after verdict, and, therefore, give the petition a liberal construction, utilizing every implication and intendment the words therein afford, and consider all reasonable inferences from such words in aid of the pleader. O'Toole v. Lowenstein, 177 Mo.App. 662, 160 S.W. 1016; Thomasson v. Merc., etc., Co., 217 Mo 485, 116 S.W. 1092; Munchow v. Munchow, 96 Mo.App. 553, 70 S.W. 386.
A reading of the petition discloses that there is no express averment therein that at the time of the alleged conversion plaintiff had the possession or the...
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