de Vries v. Brumback

• Decision Date: 19 February 1960
• Citation: 2 Cal.Rptr. 764,349 P.2d 532,53 Cal.2d 643
• Court: California Supreme Court
• Parties: , 349 P.2d 532 Paul DE VRIES, Plaintiff and Respondent, v. James J. BRUMBACK, Appellant. S. F. 20331.

Page 764

2 Cal.Rptr. 764

53 Cal.2d 643, 349 P.2d 532

Paul DE VRIES, Plaintiff and Respondent, v. James J. BRUMBACK, Appellant.

S. F. 20331.

Supreme Court of California, In Bank.

Feb. 19, 1960.

Leo R. Friedman, San Francisco, for appellant.

Lloyd M. Tweedt, Robert H. Thede and Derby, Cook, Quinby & Tweedt, San Francisco, for respondent.

SPENCE, Justice.

On February 18, 1955, plaintiff's assignor, a San Francisco jewelry firm, was robbed of certain money, precious stones and jewelry. Thereafter, in this action for conversion, plaintiff recovered judgment against defendant James J. Brumback for $21,947.13, the value of the property that was taken in the robbery and was not subsequently recovered. Defendant Brumback appeals on the judgment roll, contending that the findings do not support the judgment.

The pertinent findings of fact are: 'V. On the 18th day of February, 1955, Paul de Vries, Inc., a jewelry firm, owned and had in its possession at its offices and salesrooms in San Francisco, California, money in the amount of $195, and certain stock in trade consisting of jewelry, diamonds and other precious stones; said stock in trade then and there had a reasonable value of about $112,000.

'VI. On February 18, 1955, defendant Frank Mendes and others armed with dangerous weapons robbed said Paul de Vries, Inc. and certain persons employed therein, of money and said entire stock in trade; that prior to said date, defendant Frank Mendes, one Steve Sorrentino and others conspired and agreed with one Edward Bigarani that said Frank Mendes, Steve Sorrentino and others should rob said Paul de Vries, Inc. and that said Edward Bigarani should receive the stolen property from said robbers; that said robbery was committed pursuant to said conspiracy and the robbers delivered the greater part of said stolen property to said Edward Bigarani shortly after the robbery had been committed; that defendant James J. Brumback was not a party to and did not participate in said conspiracy prior to or during said robbery. (Emphasis added.)

'VII. On February 18, 1955, within a few hours after said robbery, defendant James J. Brumback proceeded to the hotel room of said Edward Bigarani in San Francisco, California, and then and there saw the greater part of said stolen property in the presence of said Edward Bigarani and defendant Frank Mendes; that defendant James J. Brumback was then and there made aware of said conspiracy insofar as it involved said Mendes as robber and said Bigarani as receiver; that with said knowledge, defendant James J. Brumback joined, ratified and participated in said conspiracy; that the general purpose of said conspirators was to convert all of the property stolen in said robbery to their own use and benefit and said conspiracy and its purpose had not terminated at the time said James J. Brumback joined, ratified and participated in said conspiracy. Said defendant James J. Brumback thereupon took the greater part of said stolen property into his possession and custody. (Emphasis added.)

'VIII. The greater part of the stolen property was recovered from said conspirators. Money in the amount of $175.00 taken in said robbery was not recovered; jewelry, diamonds and other precious stones, as itemized on plaintiff's Exhibit Number 3 in evidence herein, take in said robbery, were not recovered; the value of said unrecovered items set forth in said exhibit was in the sum of $21,772.13 at the time of said robbery; that by reason of the premises plaintiff's assignor has been damaged in the total sum of $21,947.13.' (Emphasis added.)

Upon these findings, appellant contends that he was improperly held liable for property over which he at no time exercised any dominion and which was never in his possession. He argues that he was not a member of the pre-robbery conspiracy and that conspiracy terminated when, after the robbery, the 'greater part of the stolen goods' was delivered to Bigarani; that thereafter, when appellant received part of the stolen property, a new conversion was committed, and his liability cannot extend beyond the amount of goods he received; and since all such stolen goods that he received were recovered, no damages could properly be assessed against him by reason of this second conversion. But appellant misconstrues the import of the findings and the premise of his liability for damages in a civil action involving a conspiracy. The basis of the damage claim was the alleged conversion of goods taken in a robbery. Conversion has been defined as 'an act of wilful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession.' Prosser on Torts, 2nd Ed., p. 66; see 48 Cal.Jur.2d Trover and Conversion, § 2, p. 536; George v. Bekins Van & Storage Co., 33 Cal.2d 834, 837, 205 P.2d 1037; Gruber v. Pacific States Savings & Loan Co., 13 Cal.2d 144, 148, 88 P.2d 137. It is a continuing tort as long as the person entitled to the use and possession of his property is deprived thereof. Contrary to appellant's argument, it does not necessarily end when the original wrongdoer transfers physical possession to another. Likewise, a conspiracy to convert is a continuing concert of action lasting so long as the agreement to exercise dominion over another's property continues. The time when the common design of the conspirators is fully accomplished depends on the facts and circumstances of each case, and on the nature and purpose of the conspiracy all matters for the determination of the trier of fact. (11 Cal.Jur.2d Conspiracy, § 4, pp. 222-224.)

The case was tried upon the theory of conspiracy and the trial court expressly found that the general purpose of the conspirators was to 'convert all of the stolen property in said robbery to their own use and benefit and said conspiracy and its purpose had not terminated at the time said James J. Brumback joined, ratified and participated in said conspiracy.' (Emphasis added.) True, the trial court found that Brumback was not a party to the conspiracy prior to or during the robbery, but that the conspiracy did not then terminate and Brumback within a few hours after the robbery joined the pre-existing conspiracy. Apparently, disposition of the stolen property was a primary feature of the conspiracy, and that had not been accomplished when Brumback joined it and thereafter aided in such disposition. See People v. Sorrentino, 146 Cal.App.2d 149, 161, 303 P.2d 859. As to Brumback's active participation therein, the court found that he 'took the greater part of said stolen property into his possession and custody.' Such overt act was clearly in furtherance of the general plan of the conspirators to exercise dominion over all the property as against the owner and to convert it to 'their own use and benefit.'

As above noted, this appeal is one upon the judgment roll alone, and the question of the sufficiency of the evidence to support the findings is not open. White v. Jones, 136 Cal.App.2d 567, 569, 288 P.2d 913. It therefore must be assumed that there was ample evidence to support the trial court's finding of a continuing conspiracy to convert and dispose of the stolen property, and that Brumback joined and actively participated in that existing conspiracy before its termination and with full knowledge of its scope and design. See People v. Brumback, 152 Cal.App.2d 386, 391, 314 P.2d 98.

It is the settled rule that 'to render a person civilly liable for injuries resulting from a conspiracy of which he was a member, it is not necessary that he should have joined the conspiracy at the time of its inception; every one who enters into such a common design is in law a party to every act previously or subsequently done by any of the others in pursuance of it.' 15 C.J.S. Conspiracy § 19, p. 1030; Peterson v. Cruickshank, 144 Cal.App.2d 148, 165, 300 P.2d 915; Franck v. Moran, 36 Cal.App. 32, 39, 171 P. 841. Having been found to have joined and actively participated in the continuing conspiracy to convert, appellant became liable for the previous acts of his co-conspirators under the rules relating to civil liability, and the fact that some of the missing goods may never have come into his possession would not absolve him from liability. Smith v. Blodget, 187 Cal. 235, 242, 201 P. 584; Revert v. Hesse, 184 Cal. 295, 301, 193 P. 943; Lomita Land & Water Co. v. Robinson, 154 Cal. 36, 48, 97 P. 10, 18 L.R.A.,N.S., 1106; Peterson v. Cruickshank, supra, 144 Cal.App.2d 148, 168, 300 P.2d 915; State of...