Mann v. Weiss

• Decision Date: 03 November 1914
• Docket Number: No. 13749.,13749.
• Citation: 170 S.W. 355
• Parties: MANN v. WEISS et al.
• Court: Missouri Court of Appeals

170 S.W. 355

MANN v. WEISS et al.

No. 13749.

St. Louis Court of Appeals. Missouri.

November 3, 1914.

Rehearing Denied November 17, 1914.

1. TROVER AND CONVERSION (§ 16) — RIGHT OF ACTION — LAWFUL POSSESSION BY DEFENDANT — "TROVER."

The fact that the defendant was lawfully in possession of a chattel at the time of its alleged conversion, with authority to dispose of it, does not preclude recovery by the owner in "trover," which is an action for the recovery of personal property which has been wrongfully converted; the conversion being the gist of the action, and the original rightful possession becoming tortious when there is such conversion.

2. TROVER AND CONVERSION (§ 10) — ACTS CONSTITUTING CONVERSION — PROPERTY LEFT FOR SALE.

Where a ring was left by plaintiff with defendants for sale upon plaintiff's account, and the defendants permitted it to get out of their possession without selling it, so that it was lost to the plaintiff, they are liable as for the conversion.

3. APPEAL AND ERROR (§ 1005) — REVIEW — VERDICT — WEIGHT OF EVIDENCE — PASSION AND PREJUDICE.

The appellate court cannot set aside a verdict merely because it is against the greater weight of the evidence; but if the evidence shows that the verdict was the result, not of judgment, but of passion and prejudice, it may be set aside on appeal, notwithstanding the action of the trial court in overruling a motion for a new trial.

4. APPEAL AND ERROR (§ 1002) — REVIEW — VERDICT — CONFLICTING EVIDENCE — CONVERSION.

In an action for the conversion of a ring left by plaintiff with defendants for sale on plaintiff's account, where the testimony of the plaintiff was sufficient, if believed, to establish every fact essential to his recovery, although it was flatly contradicted by that on behalf of defendants, a verdict for plaintiff will not be set aside as being the result of passion and prejudice, especially where the amount of the verdict was less than the uncontradicted evidence showed the value of the ring to have been.

5. WITNESSES (§ 287) — RE-EXAMINATION — CONVERSATION.

Where defendants, on cross-examination of a witness for plaintiff, brought out part of a conversation, the entire conversation may be brought out on re-examination, even though it consisted of self-serving declarations on the part of plaintiff.

6. APPEAL AND ERROR (§ 1015) — REVIEW — FINDINGS BY TRIAL COURT — MOTION FOR NEW TRIAL.

A finding by the trial court, on motion for new trial, that the plaintiff's counsel during his argument had not made certain remarks, as alleged by defendants' affidavits, which finding was supported by plaintiff's affidavits, cannot be questioned on appeal.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by Morris H. Mann, doing business as M. H. Mann & Co., against Arnold A. Weiss and others. Judgment for the plaintiff, and defendants appeal. Affirmed.

Arnold Lowenstein and M. Hartmann, both of St. Louis, for appellants. Abbott & Edwards, of St. Louis, for respondent.

REYNOLDS, P. J.

The petition in this case is in the usual form, in tort to recover damages for unlawful conversion by defendants of a diamond ring, alleged to be the property of plaintiff and of the value of $700.

The answer was a general denial.

The cause was tried before the court and a jury.

At the close of plaintiff's evidence in the case defendants demurred, on the ground of a total failure of proof. The court refused the demurrer, defendants excepting. The jury, after being instructed by the court, returned a verdict in favor of plaintiff, assessing damages at $500, from which defendants have duly perfected their appeal to this court.

Here appellants assign five errors.

The first is to the refusal of the court to give the demurrer interposed at the close of plaintiff's case, it being argued that there was a total failure of proof of the cause of action pleaded; that the proof must conform to the pleadings and that the transaction here shown was the delivery of an article at a fixed price to be paid for or returned and that that constitutes a sale, and that to sustain an action as in trover for conversion, plaintiff must show that at the time of the alleged conversion he had possession of the property in controversy, or the right to immediate possession thereof, and if the proof establishes that defendants were in lawful possession of the property at the time of the alleged conversion and were authorized to dispose of the same, then the suit on conversion cannot be maintained.

Taking up the position of counsel as to what is necessary to sustain an action in trover for conversion, we cannot agree with counsel. The possession may be rightful in the first place, but if that possession, after demand made for the return of the article, becomes tortious, then the tort-feasor is liable. The common law action of trover, is an action "whereby the owner of personal property may recover damages against a person who has committed the wrong of conversion with respect to the property." 28 Am. & Eng. Ency. Law (2d Ed.) par. 1, p. 646. It is founded "on the fictitious basis that the defendant came rightfully into possession and then wrongfully converted the property to his own use." Ibid. par. 5, p. 560. Conversion is the gist of the action.

An instructive case, applicable here as to some of these positions taken by counsel, is that of Hall et al. v. Boston & Worcester R. R. Corporation, 14 Allen (Mass.) 439, 92 Am. Dec. 783. That was an action in tort against the defendant, a railroad corporation, for the conversion of 28 barrels of flour. The barrels of flour were in the lawful possession of the railroad corporation which made a wrongful delivery of them to an unauthorized person. The true owner suing for the conversion, a recovery was sustained, the court holding (loc. cit. 443):

"A misdelivery of property by any bailee to a person unauthorized by the true owner is of itself a conversion, rendering the bailee liable in trover, without regard to the question of due care or degree of negligence. This is a well...