Davis & Son v. Hurt , 114 Ala. 146 ( 1896 )

BRICKELL, C. J. —

Warehousemen are of the class of bailees buund to ordinary diligence, and, of consequence, liable only for losses occurring from the want of ordinary care. When, however, upon demand made, the bailee fails to deliver goods entrusted to his care, or does not account for the failure to make delivery, prima facie negligence will be imputed to him; and the burden of proving loss without the want of ordinary care devolves upon him. — Seals v. Edmondson, 71 Ala. 509; Prince v. Ala. State Fair, 106 Ala. 340 ; Claflin v. Meyer, 75 N. Y. 260 ; s. c. 31 Am. Rep. 467; Boies v. H. & N. H. R. R. Co., 37 Conn. 272; s. c. 9 Am. Rep. 347. The rule is founded in necessity, and upon the presumption that a party who, from his situation, has peculiar, if not exclusive knowledge of facts, if they exist, is best able to prove them. If the bailee, to whose possession, control and care, goods are entrusted, will not account for the failure, or refusal to deliver them on demand of the bailor, the presumption is not violent that he has been wanting in diligence, or that he may have wrongfully converted, or may wrongfully detain them. Or if there be injury to, or loss of them during the bailment, it is but just, that he be required to show the circumstances, acquitting himself of the want of diligence it was his duty to bestow.

When the bailee fails to return the goods, on demand, the principal has an.election of remedies ; he may sue in assumpsit for a breach of contract, or in case for negligence, or if there has been a conversion of the goods, in trover for the conversion. — Story on Bailments, §§ 191-269; Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492; s. c. 8 Am. Rep. 564; Magnin v. Dinsmore, 70 N. Y. 410; s. c. 26 Am. Rep. 608. The gist of the action of trover is the conversion; the right of property may reside in the plaintiff, entitling him to pursue other remedies, but trover cannot be pursued without evidence of a conversion of the goods. Glaze v. McMillion, 7 Port. 279 ; Conner v. Allen, 33 Ala. 516; Bolling v. Kirby, 90 Ala. 215. In Connor v. Allen, supra it was said by Rice, C. J.: “Trover is one of the actions the boundaries of which are distinctly marked and carefully preserved by the Codé. A conversion is now, as it has ever been, the gist of that action, and without proof of it, the plaintiff cannot recover, whatever else he may prove, or whatever may be his right of recovery in another form of action.” And he adopts the definition or description of a conversion given by Mr. Greenleaf : “A conversion in the sense of the law of trover, consists either in the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it, in exclusion or defiance of the plaintiff’s right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own.” — 2 Greene. Ev., § 642. In Glaze v. McMillion, supra, it was said : “It is believed that all conversions may be divided into four distinct classes : 1. By a wrongful taking. 2. By an illegal assumption of ownership. 3. By an illegal user or misuser. 4. By a wrongful detention.” In Bolling v. Kirby, supra, there was a very full examination of the authorities, and discussion of the essential elements or facts which must concur to constitute conversion in the sense of the law of trover, by McClellan, J.; and'the result declared was, that “conversion upon which recovery in trover may be had, must be a positive, tortious act. Nonfeasance or neglect of legal duty, mere failure to perform an act obligatory by contract, or by which property is lost to the owner will not support the action.” The case is republished, with elaborate and instructive annotation by Mr. Freeman, 24 Am. St. Rep. 789-819. In Ala. & Tenn. Rivers R. R. Co. v. Kidd, 35 Ala. 209, it was held, that “trover will not lie for a bare non-delivery of goods by a warehouseman, unless they are in his possession, and he refuses to deliver them on demand.”- In Abraham & Bro. v. Nunn, 42 Ala. 51, it was held, that trover would not lie against a warehouseman, for the conversion of goods taken from his possession by an armed force, without negligence or complicity on his part. In Salt Springs Nat. Bank v. Wheeler, supra, the defendant had received for acceptance certain bills of exchange, and at the demand of the person entrusting them to him, failed to return them, saying he could not find them, and might have torn them up with papers he considered of no value ; it was held, he was not liable in trover, there being no evidence of a voluntary or intentional destruction or loss of the bills ; though he was liable upon his implied promise to present the bills for acceptance, and if not accepted or paid, to give notice to the plaintiff.

Without pursuing further an examination of authorities, it may safely be said, that a mere failure by a bailee on demand made, to deliver goods which have been entrusted to him, is not a conversion which will support an action of trover, 'if he sets up no title hostile to or inconsistent with the title of the bailor, or has not appropriated them to his own use, or to the use of a third person, or exercised over them a dominion inconsistent with the the bailment. All that can be fairly predicated of the facts found in the record, is the mere failure to deliver the cotton upon the demand of the plaintiff; possession of it not remaining with the defendant. There was no denial of the title of the plaintiff, nor a dominion exercised over the cotton inconsistent with the terms of the bailment, no evidence of a conversion of appropriation of it to their own use, or to the use of any third person by the defendants. The failure to deliver, unexplained, raises a presumption of negligence against them, and may involve them in a liability for a breach of the contract of bailment, or for negligence in the performance of the duty springing from the contract, but it is not the conversion; the positive, tortious act, indispensable to maintain trover. Prom this view, it results there was error in the instruction given voluntarily by the court below. The second, third and forth instructions given at the instance of the plaintiff do not, as is obvious from what we have said, find support in the evidence, and for that reason ought not to have been given, as their immediate tendency was to mislead the jury, The second, third, fourth, and fifth instructions requested by the defendant, should have been given.

Let the judgment be reversed, and the cause remanded for further proceedings in conformity to this opinion.

Reversed and remanded.