Mitchell v. Ga. & A. Ry. Co

• Court: Supreme Court of Georgia
• Writing for the Court: COBB
• Citation: 111 Ga. 760,36 S.E. 971
• Parties: MITCHELL. v. GEORGIA & A. RY. CO.
• Decision Date: 09 August 1900

111 Ga. 760
36 S.E. 971

MITCHELL.
v.
GEORGIA & A. RY. CO.

Supreme Court of Georgia.

Aug. 9, 1900.

REPLEVIN—POSSESSION BY AGENT—PLEADING —AMENDMENT.

1. While, at common law and by statute in this state, "mere possession of a chattel * * * will give a right of action for any interference therewith, " such possession must be in the plaintiff's own right, and not as agent of another. (a) The above rule is not contravened by section 3038 of the Civil Code. The word "agent, " as used therein, is to be construed as meaning an agent who has a property, either general or special, in the personalty in his possession.

2. A petition brought, in the name of a person who had not such a possession, to recover personal property taken from him, cannot be so amended as to proceed in the name of the plaintiff for the use of the real owner.

(Syllabus by the Court.)

Peaceable and lawful possession of a chattel, even if the holder has no title to the same, gives him a right to sue in trover a wrongdoer who has deprived him of that possession. Hence it follows that where a husband is the manager of his wife's business, and as such is in the lawful possession of lumber belonging to her, which without his authority or consent was wrongfully removed by a railroad company, an action of trover in his own name will lie for the recovery of the property.

Per Lewis, J., dissenting.

Error from superior court, Wilcox county; C. C. Smith, Judge.

Action by T. I. Mitchell against the Georgia & Alabama Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Eldridge Cutts and Hal Lawson, for plaintiff in error.

Charlton, Mackall & Anderson, D. B. Nicholson, and W. A. Hawkins, for defendant in error.

COBB, J. T. I. Mitchell, describing himself as "agent, " brought an action against the Georgia & Alabama Railway Company to recover possession of a certain described lot of lumber alleged to be in the possession of the defendant. The petition averred that the plaintiff was the owner of the property sued for, and that he had demanded the same of the defendant, who had refused to deliver it to him or pay him the profits thereof. At the trial the plaintiff testified that he was in possession of the property described in the petition as agent for his wife, and that he had no other interest therein; that he had the lumber loaded on one of the cars of the defendant, intending to sell it to one Gibbs if he paid cash for it as agreed; that Gibbs did not pay for the lumber, and the defendant, before delivery to it, and without authority of plain tiff, shipped the lumber to Gibbs; that plaintiff made a demand on the defendant for the lumber, but it refused to deliver the same to him. At the conclusion of the evidence the court granted a nonsuit on the ground that the evidence showed the title to the property sued for was in the plaintiff's wife, and that he had no such possession as entitled him to recover. The plaintiff then offered an amendment inserting in the petition the name of his wife as usee. The court refused to allow the amendment, and the plaintiff sued out a bill of exceptions, complaining of this refusal and of the granting of a nonsuit.

1. The exception to the granting of a nonsuit brings up for determination the question whether a person in possession of a chattel as agent for another, and having no special property or interest therein, can maintain against a person wrongfully converting the goods an action of trover. A proper solution of this question requires a somewhat extended examination into the nature of some of the actions which were at common law employéd in cases of injury to or interference with the personal goods of another. Our action of trover is purely statutory. In McBain v. Smith, 13 Ga. 315, Judge Warner said that it was a substitute for the old common-law action of detinue, while in McElhannon v. Commission Co., 95 Ga. 670, 22 S. E. 686, Mr. Justice Atkinson said that it combined some of the characteristics of both of the common-law actions of trover and detinue. We think it perhaps more accurate to say that our action of trover may be employéd in any case in which replevin, detinue, or trover could be used at common law. We shall therefore inquire into the nature of these three forms of action, with a view to ascertaining what persons were authorized to maintain them.

Replevin was employéd to recover goods unjustly taken and wrongfully detained. It was generally used in cases of distress, when the person whose goods were seized gave security and replevied the property, in which event he was bound to bring replevin against the distrainor. 3 Black, Comm. p. 146 et seq. It seems, however, that it could be brought in any case where the owner had goods wrongfully taken from him by another. 1 Chit. Pl. (16th Am. Ed.) *181; Steph. Pl. (Heard's Ed.) *20. And in many of the states the action of replevin is by statute employéd to recover personalty in any case in which possession is wrongfully withheld from the person entitled thereto. In this form of action at common law the goods themselves could be recovered, with damages for their wrongful detention. The action of detinue was used to recover goods wrongfully detained, though lawfully taken. In order to maintain this form of action, it must have appeared (1) that the defendant came lawfully into possession; (2) "that the plaintiff have a property"; (3) that the goods were of some value; and (4) that they were capable of identification. In this action the plaintiff recovered the goods themselves, if

[36 S.E. 972]

they could be had, and, if not, their respective values, and also damages for the detention. The gist of this action was the unlawful detention. 3 Bl. Comm. p. 151. The common-law action of trover and conversion lay to recover damages equal to the value of the goods wrongfully withheld, but not the goods themselves. The gist of this action was the unlawful conversion. Id. p. 152. Under our action of trover the plaintiff may elect whether he will take a verdict for the property or its value, or for damages alone, or for the property alone and its hire, if any. Civ. Code, § 5335. It is well settled that, to support any one of the three common-law actions, the plaintiff must have had either a general or special property in the goods seized. "To support replevin, the plaintiff must, at the time of the caption, have had either the general property in the goods taken, or a special property therein." 1 Chit. Pl. (16th Am. Ed.) p. 239, *183. "It is a general rule that the plaintiff must have the property of the goods in him at the time of the taking." Co. Litt. 145b. See, also, Manufacturing Co. v. Wiggin, 14 N. H. 441, 40 Am. Dec. 198; Beckwith v. Philleo, 15 Wis. 223; Pattison v. Adams, 7 Hill, 126, 42 Am. Dec. 59; Walpole v. Smith, 4 Blackf. 304. To maintain the action of detinue, it must appear "that the plaintiff have a property." 3 Bl. Comm. p. 152. "It seems to be a general rule that the plaintiff must have a general or special property in the goods at the time the action was commenced, in order to maintain detinue." 1 Chit. Pl. (16th Am. Ed.) *137. See, also, 6 Enc. Pl. & Prac. 645 et seq. In reference to the common-law action of trover, Mr. Chitty says that in order to support the action the plaintiff must at the time of the conversion "have had a complete property, either general or special, in the chattel, and also the actual possession, or the right to the immediate possession, of it." 1 Chit. Pl. (16th Am. Ed.) *167. And on the next page he says, "Without an absolute or special property, this action cannot be maintained." See, also, 26 Am. & Eng. Enc. Law (1st Ed.) 744. In this state the general rule is that in order to maintain trover the plaintiff must show title in himself. Gil-more v. Watson, 23 Ga. 63; Jaques v. Stewart, 81 Ga. 81, 6 S. E. 815; Palmour v. Fertilizer Co., 97 Ga. 244, 22 S. E. 931. While a property in the goods, either general or special, must appear, to authorize any one of the three forms of action, "in an action of replevin against a wrongdoer prior possession is alone sufficient to enable the plaintiff to recover." Shinn, Repl. § 200. See, also, 18 Enc. Pl. & Prac. 505; Cobbey, Repl. § 423. The same is true of trover. In discussing what is meant by having a special property in a chattel, Mr. Chitty says, "It is a general rule that the bare possession of goods, without any strict legal title, confers a right of action against a mere wrongdoer, having no right, and not clothed with any authority from the real owner." 1 Chit Pl. (16th Am. Ed.) *170. "Possession is prima facie proof of ownership of a chattel not unlawfully acquired, and, whatever the interest of the possessor in the thing may be, is sufficient to enable trover to be maintained, as against all the world except the rightful owner, for a conversion committed in respect to it" 26 Am. & Eng. Enc. Law, 748. See, also, Broom, Comm. (9th Ed., by Arch. & C.) p. 912; 1 Smith, Lead. Cas. p. 632. This principle is well settled, and has been incorporated in our Code in the following language: "Mere possession of a chattel, if without title, or wrongfully, will give a right of action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession." Civ. Code, § 3886. This section, as stated, is but a codification of the common law, and the principle intended to be announced therein is the same as that above quoted from Chitty and the Encyclopædia. As this case turns, to a large extent, on the construction of this section, it is necessary to ascertain the meaning of the words "mere possession, " as used therein. As a general rule, as is laid down in the decisions from this court cited above, a plaintiff, in order to recover in trover, must show title in himself. Possession is presumptive evidence of title, and becomes conclusive evidence against a mere wrongdoer; he not being allowed to set up the jus tertii. Dicey,...