Martin v. Sikes

• Citation: 229 P.2d 546,38 Wn.2d 274
• Decision Date: 22 March 1951
• Docket Number: No. 31396,31396
• Court: United States State Supreme Court of Washington
• Parties: MARTIN et ex. v. SIKES.

Page 274

38 Wn.2d 274

229 P.2d 546

MARTIN et ex. v. SIKES.

No. 31396.

Supreme Court of Washington, Department 2.

March 22, 1951.

Rehearing Denied May 1, 1951.

Dodd & Russell, Seattle, for appellant.

Kelley, O'Sullivan & Myers, Seattle, for respondents.

ROBINSON, Justice.

This is an action brought to recover for the alleged conversion of a milking machine worth four hundred fifty dollars. From a judgment in favor of the plaintiffs, defendant has taken this appeal.

Respondent Michael Martin was formerly the tenant on a dairy farm belonging to appellant, Kenneth K. Sikes. At the time his lease was executed, he purchased from Sikes the milking machine which is the subject of this appeal. It was his impression that the pipeline used with the milking machine was included within the purchase. Sikes did not share this impression. The parties were unable to get along together satisfactorily, and Martin's lease was eventually terminated by mutual agreement. Sikes heard that Martin planned to take the pipeline with him when he left the farm, and wrote him a letter, reading, in part: 'If you * * * remove any of the milking machine pipe and stall cocks from the barn, or any of the wiring installations from the house, or any other of my personal property, you will be promptly arrested and charged with Grand Larceny by the King County Prosecutor, * * *. You will then be dealt with according to law.'

Martin did not communicate with Sikes upon receipt of this letter, and, on February 27, 1948, Sikes consulted with Judge Edword H. Wright, Justice of the Peace for the Cherry Valley precinct, and signed a criminal complaint, drawn by Judge Wright, to be used as the basis for a warrant to keep the peace. This complaint read, in part, as follows:

'In Justice's Court

'Cherry Valley Precinct, King County, Washington

'The State of Washington

vs.

'Mike Martin

No. 230

Criminal Complaint For Keep the Peace

'Before me Edward H. Wright, a Justice of the Peace, in and for the said County, this day personally appeared Kenneth Sikes who, being first duly sworn, on oath complains and says: That on the 27th day of February, 1948, at ........ in the County of King and State of Washington, Mike Martin did threaten to take and injure property of complainant, to wit: milking machine and instalations, the same being upon the farm of complainant in said King County. * * *

'Wherefore said complainant prays that the said defendant Mike Martin may be arrested and dealt with according to law.

'[Signed] Kenneth Sikes'

(Italics ours.)

It will be observed that this complaint asserts the ownership of the milking machine to be in Sikes, although it is conceded by all that this unit, as distinguished from the pipeline, was the property of Martin. How this error came to be made is not entirely clear. Judge Wright took the blame for it, stating that he was not a farmer and that he knew nothing about milking machines. He said of the complaint that, instead of saying 'milking machine and installations,' it should have said 'milking machine installation,' but that he had not understood this at the time it was drawn up. Sikes stated that he never intended to claim anything but the pipeline; but he signed the complaint, and, in addition, Judge Wright testified that he read it to him before he did so.

Pursuant to the signing of this complaint, a warrant was issued and delivered by Judge Wright to L. J. Landers, a deputy sheriff. Landers then went to see Martin at the farm. The two were not entirely in accord as to what occurred there, but Martin testified as follows: 'He gave me this warrant and asked me to read it. After I had read it he asked if I understood it. I told him I did but said 'The things I have here are my owner [sic] personal property.' He said 'The Judge don't think so.' I told him I could prove it. He said 'No ifs and ands about it, leave them all here or I will have to take you in.' I told him in that case I would have to leave them. I had a friend there helping me. Mr. Landers went over and argued with him. After they got through arguing I stopped the deputy and asked if he had authority to arrest me. He said he did. I asked on what authority and he said on the warrant. I asked him where he got it and he said from the Judge. He said the Judge had the authority. Then he looked up and saw the pipeline and asked whose it was. I said it was mine. He said 'Promise to leave that here too.' I said 'I will if you give me the warrant.' He said he could not do that, that he had to keep it, but I could go to the Judge and get my own. I said I would do it but I was not going to let Sikes get away with it. He said he didn't care what I did, that it was up to me and he had nothing to do with it, and then he left.'

Landers testified that he then telephoned Judge Wright and arranged a meeting between him and Martin for that evening. The trial court found that Martin, in order to avoid arrest, promised to leave the milking machine on the farm and to call upon Judge Wright as arranged. In fact, however, Martin had already taken the machine to North Bend. Whether Martin told Landers of this was disputed. Although the trial judge made no finding of fact on the point, it can reasonably be inferred from the wording of the oral opinion that he was of the view that he did not.

When Martin called on Judge Wright that evening, he was told that, if he would not remove any of the property in question, a peace bond would not be required. Judge Wright testified that he was not concerned with the merits of this civil dispute, but wished only to be sure there would be no violence or breach of the peace. Upon Martin's assurance that he would leave matter 'in status quo,' therefore, Judge Wright gave him the original copy of the complaint, which he took with him. As a result of this conversation, Judge Wright testified that he did not docket the case, and destroyed all of the relevant papers. Martin averred that he told Judge Wright that the milking machine had already been taken to North Bend and that Judge Wright told him that it should stay on the farm. Judge Wright, however, testified positively that Martin never told him that he had moved the milking machine, and the trial court, in its findings of fact, found this to be the case. In any event, Martin, after his conversation with Judge Wright, procured a friend to bring the milking machine back from North Bend to the farm.

On the following day, Martin gave up possession of the farm. While he was engaged in moving some of his property, it appears that Sikes asked him whether he was not going to take with him either the milking machine, according to one version of the conversation, or the compressor, which was a part thereof, according to another. Appellant's witnesses testified that Martin refused to discuss the matter; respondents' witnesses indicated that Martin said he could not move this property because he had told Judge Wright he would not. Whatever the truth of the matter, it is clear that Martin refused to take the property with him, or to treat it as any longer belonging to him.

May appellant, Sikes, be held liable as a converter of the milking machine? The trial judge thought so, and, accordingly, entered judgment in favor of Martin for the full value of the machine at the time of the alleged conversion.

The question of what constitutes conversion is no easier of solution at the present day than it was at the time of Baron Bramwell, who remarked that, 'after all, no one can undertake to define what a conversion is.' Burroughs v. Bayne, 5 H. & N. 296, 29 L.J.Ex. 185 (1860). The restatement has made no attempt at a definition. Restatement, Torts, p. 572, § 223. But one English authority has set forth the following: 'A conversion is the act of wilfully interfering with any chattel, without lawful justification, whereby any person entitled thereto is deprived of the possession of it.' Salmond on the Law of Torts (9th ed.) 310, § 78.

Other writers have emphasized loss of possession on the part of the plaintiff as a necessary element of the wrong of conversion. Warren, Trover and Conversion, p. 31; Scarborough, Test of Conversion in Tort, 1 N.J.L.Rev. 5, 12. See Bowers, The Law of Conversion, p. 216, § 298. So, also, have numerous cases. Traylor v. Horrall, 4 Blackf., Ind., 353; Heighes v. Dollarville Lumber Co., 113 Mich. 518, 71 N.W. 870; Thorp v. Robbins, 68 Vt. 53, 33 A. 896. On the other hand, it is quite clear that, to support an action for conversion, it is not always necessary to show that the defendant himself has personally acquired the possession, as when he has made an unauthorized sale of the plaintiff's property and the buyer thereof has taken possession, Ramsby v. Beezley, 11 Or. 49, 8 P. 288; Bickford v. Hupp, 83 Wash. 427, 145 P. 454; or, in some circumstances at least, where the defendant has participated in the wrongful act of a third party who himself has taken possession, to the extent of aiding or abetting the consummation of the wrong Continental Gin Co. v. DeBord, 34 Okl. 66, 123 P. 159; Clark v. Whitaker, 19 Conn. 319, 48 Am.Dec. 160. Furthermore, in some special situations, it has been held that it is not even necessary that the plaintiff be deprived of physical possession in order that a conversion be held to have taken place. Thus, many courts, though, as we shall show, by no means all, have held that conversion will lie for an unjustified levy under legal process, even though possession is not otherwise disturbed and no sale is made pursuant to the levy. Kloos v. Gatz, 97 Minn. 167, 105 N.W. 639; Connah v. Hale, 23 Wend., N.Y., 462; Phillips v. Hall, 8 Wend., N.Y., 610. These decisions may be explained on the theory that the levying officers, acting in the name of the law, took over, not actual possession, it is true, but constructive possession, pursuant to the authority of their writs of attachment. Unquestionably, the plaintiffs continued in nominal...