Staley v. Colony Union Gin Co.

• Decision Date: 31 January 1914
• Citation: 163 S.W. 381
• Parties: STALEY v. COLONY UNION GIN CO.
• Court: Texas Court of Appeals

163 S.W. 381

STALEY v. COLONY UNION GIN CO.

Court of Civil Appeals of Texas. Amarillo.

January 31, 1914.

Appeal from Wilbarger County Court; J. B. Copeland, Judge.

Action by C. R. Staley against the Colony Union Gin Company, From a judgment for defendant, plaintiff appeals. Affirmed.

Cook & Cook and R. S. Houssels, all of Vernon, for appellant. Storey & Warlick, of Vernon, for appellee.

HALL, J.

This suit originated in the justice court of Wilbarger county, and was instituted to recover the value of two bales of cotton alleged by appellant to have been converted by appellee. The defendant company answered by general denial, and specially that it was not required to redeliver the cotton which had been left with it for ginning purposes by plaintiff; that after it had received the cotton sued for, it was ginned and delivered to plaintiff on the yard or platform of the gin, which was the full extent of their duty. The answer further alleges that it was the custom to so deliver cotton, and it was not the duty of the company to further protect it after it had been ginned.

The charge of the court is made the basis of the principal errors assigned. The first paragraph of the charge was evidently taken from the case of G., C. & S. F. Ry. Co. v. Humphries, 4 Tex. Civ. App. 333, 23 S. W. 556, and is to the effect that, in order to constitute a conversion by a bailee, there must be such an intention of deviation from the contract as would be tantamount to an assertion of right of dominion over the property, inconsistent with the bailor's right of ownership. Appellant insists that there is no question of conversion, either in the pleadings or evidence, and the court has charged upon an issue foreign to the case. As heretofore stated, the suit was for conversion and there is some evidence in the record tending to show that an employé of the company by the name of Mundy had made away with the cotton. This paragraph of the charge was proper.

The second paragraph of the charge refers to the first, and instructs the jury that if they should find from the evidence there was such contract between plaintiff and defendant as set forth in the preceding paragraph, and should find that there was such a deviation from said contract as is set forth in the first paragraph, then to find for plaintiff, unless they should find for defendant under subsequent instructions. The subsequent paragraphs of the charge instruct the jury with reference to the necessity on the part of defendant to exercise ordinary care in keeping the cotton, and further in the third paragraph instructs the jury if it should be found that defendant exercised ordinary diligence in keeping it properly marked and tagged, then to find for defendant. This portion of the charge placed a greater burden upon the appellee than the law would authorize, and therefore cannot be a ground of complaint on the part of appellant.

It is said in 2 Cooley on Torts, p. 872: "The refusal to surrender possession in response to a demand is not of itself a conversion; it is only evidence of a conversion, and like other inconclusive acts, is open to explanation. It may, for instance, be shown that the property has perished or been lost without the bailee's fault, and that he does not surrender possession simply because it has become impossible." Under this rule the appellant certainly did not establish a case of conversion. It is further said in the same paragraph: "Thus in trover for three bales of cotton the plaintiff's evidence showed that he held and owned certificates for the cotton in the defendant's warehouse; that the plaintiff's agent made demand...