Semple School for Girls v. Yielding

• Decision Date: 12 November 1918
• Docket Number: 6 Div. 378
• Citation: 16 Ala.App. 584,80 So. 158
• Parties: SEMPLE SCHOOL FOR GIRLS v. YIELDING.
• Court: Alabama Court of Appeals

80 So. 158

16 Ala.App. 584

SEMPLE SCHOOL FOR GIRLS v. YIELDING.

6 Div. 378

Court of Appeals of Alabama

November 12, 1918

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by Lillian Yielding, pro ami, against the Semple School for Girls. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The plaintiff in the court below (appellee here) was an infant over 18 years of age, living with her parents in Birmingham Ala. Her father made arrangements with the defendant in the court below (appellant here) for her attendance at a boarding school in New York City for a period of one scholastic year at an agreed price of $1,000, and in accordance with that contract she was delivered to the appellant, together with such suitable wearing apparel as was necessary, where she remained until the end of the school year, during which time she purchased various other articles of wearing apparel to be added to her wardrobe with money furnished her by her parents, sometimes by one and sometimes by the other. The wearing apparel of the appellee was kept and used by her during the school year, and when she was preparing to return to her home in Birmingham she packed it all in two trunks both of which remained in the house of the appellant.

The father failed to pay the amount agreed upon for the tuition and board, and after the appellee had purchased her ticket to her home in Birmingham and had notified the expressman to call for her trunks, in which her wearing apparel had been packed, the appellant, through one of the teachers, notified the appellee that her trunks would be held on account of the nonpayment of the amount due for her board and tuition, and the appellant did hold one of these trunks for a period of five or six weeks, but one of them was not held, but came on to Birmingham on the same train with the appellee. After five or six weeks the appellant sent the other trunk to the appellee. The appellant then filed suit against the father for the amount due, and obtained judgment thereon, whereupon the appellee brought suit by attachment against the appellant, claiming damages for the conversion of the property contained in the trunk, which had been detained by the appellant.

The complaint was in six counts. Count 1 claimed for the conversion. Count 2 was in statutory form for trespass. Count 3 was for the breach of a contract. Count 4 was for conversion and claimed added damages for aggravation inconvenience, humiliation, harassment, and annoyance. Count 5 was in trespass for the wrongful taking of the goods, together with elements of damage for humiliation, etc. Count 6 was for the willful and malicious conversion of goods. There was verdict and judgment for the plaintiff, and from the judgment the defendant appeals.

W.A. Gunter, of Montgomery, and Leader & Ewing, of Birmingham, for appellant.

Beddow & Oberdorfer, of Birmingham, for appellee.

SAMFORD J.

The evidence without dispute discloses that the plaintiff, who was an infant, had been by her father placed in the custody and under the control of the defendant, who was the principal of the school in New York City, and who therefore stood in loco parentis to the infant, having not only the custody of the plaintiff, but also the control and custody of her wearing apparel, during the period of the school year. Under these facts, the retention of the trunk and its contents would not constitute an asportavit, and therefore there was no element of trespass. This being the fact, it will be unnecessary to further notice the claims made in the second and sixth counts.

The claim under the third count is not urged, and therefore it will not be further considered.

This brings us to a consideration of the case as made under the counts claiming for the conversion of the trunk and its contents, together with damages for the willful and malicious conversion as claimed by the plaintiff.

It is contended by the plaintiff that, as the contract was made by the father, and the property held was that of the plaintiff, the holding was illegal, without color of right, and therefore the jury was warranted in finding that the conversion was malicious.

The defendant's pleas were in effect as follows: Plea 1 was a general denial. Plea 2 was also a general denial. Plea 3 is in substance that the defendant had returned the goods to the plaintiff without injury and in the condition in which plaintiff left it, on demand of plaintiff and before the commencement of this suit, and denying that the plaintiff suffered any damage. Plea A was to the effect that the property detained by the defendant was the property of the father of the plaintiff, and was in the possession of the defendant as a boarding house keeper, and was held under a lien given by the law of New York to secure the debt of the father for the board and lodging of the plaintiff, an infant child of the father; that the law of New York giving said lien is in the words of the law of Alabama, evidenced by section 4827 of the Code. Plea B also alleges that the defendant was holding the property as a boarding house keeper, under a lien created by the law of New York, but differs from plea A in that it also alleges that she also ran a school in connection with said boarding house.

There were replications to pleas A and B, alleging that the credit was extended to the father of the plaintiff, and not to the plaintiff.

The law governing ordinary cases of conversion and the measure of damages incident thereto has been so often declared as to render a repetition of those rules unnecessary here. It is a well-recognized rule that the plaintiff in a suit for conversion must have the title or a special interest in the property entitling him to the right of immediate possession at the time of the bringing of the suit. 38 Cyc. p. 2050.

It is also undoubtedly the law that any property acquired by an infant except by its own labor belongs to the infant, as its separate estate, and the parent has no right in such property. Nelson v. Goree's Adm'r, 34 Ala. 565; Alston v. Alston, 34 Ala. 15; Rhoades v. McNulty, 52 Mo.App. 301; Van Epps v. Van Deusen, 4 Paige (N.Y.) 64, 25 Am.Dec. 516--all of which authorities are in line with the authorities cited in appellee's brief. But articles given to a child by the parent by way of support and maintenance, in keeping with its condition in life, remain the property of the parent, and do not become the property of a child, although the child may have the possession of them and a special property in them, and as to all the world, except the parent, has the exclusive right to them. Smith v. Abair, 87 Mich. 62, 49 N.W. 509; Wheeler v. St. Jos. & W. Ry. Co., 31 Kan. 640, 3 P. 297; Burke v. L. & N., 7 Heisk. (Tenn.) 451, 19 Am.Rep. 618; Prentice v. Decker, 49 Barb. (N.Y.) 21; Richardson v. L. & N., 85 Ala. 559, 5 So. 308, 2 L.R.A. 716; Baltimore Steam Packet Co. v. Smith, 23 Md. 402, 87 Am.Dec. 575; Curtis v. D., L. & W. Railway Co., 74 N.Y. 116, 30 Am.Rep. 271; 20 R.C.L. p. 614.

Of course, as was said in Richardson v. L. & N., supra:

"If he purchases jewels, or other *** ornaments, or even wearing apparel, and makes an express gift thereof to his wife, independent of and without reference to his marital duty, they undoubtedly would be her separate estate under the statute; also if her wearing apparel is purchased with money which is her separate estate."

But in this case the evidence is without conflict that the trunk and its contents were such articles as would ordinarily be furnished by a parent to a child in the condition of life of the plaintiff, and that these articles were either furnished directly by the parents or with money given to her by them, and therefore created no separate estate in the child, although they were for the use and benefit of the plaintiff, but the plaintiff had no right to them other than to use them for her own well-being; this notwithstanding the conclusion, as testified to by the plaintiff, that she owned the property. The facts as detailed evidence only the special interest in them, as hereinbefore set out.

It has many times been held, under facts similar to those in this case, that the parent could maintain an...