Louisville & Nashville R. R. v. Scheinert , 156 Ala. 411 ( 1908 )

McCLELDAN, J.

(dissenting). I cannot concur in the reversal of this judgment: My Brothers hold that the affirmative charge for the defendant should have been given on the fifth count, which was for the conversion of the trunk. One of the plaintiffs testified that he demandied the trunk of the defendant’s agent at Boyles, the place to which the trunk was checked, and that: “The agent did not give it to me. He failed to give me the trunk. * * * I presented the baggage check to the agent and demanded the trunk, and he refused to give it to you. He told me that he did not know whether they put that trunk off or not. They might have carried it to Birmingham.” It is the settled law that, as between bailor and bailee, a refusal to delived the goods in the bailee’s possession to bailor is evidence, at least prima facie, of a conversation. — Dent v. Chiles, Stew. & P. 383, 395, 396, 26 Am. Dec. 360; Conner v. Allen, 33 Ala. 515; Butler v. Jones, 80 Ala. 436, 2 South. 300; Parker v. Goldsmith, 16 Ala. 526; Davis v. Hurt, 114 Ala. 146, 21 South. 468; Lockwood v. Bull, 1 Con. (N. Y.) 322, 13 Am. Dec. 539; Holbrook v. Wright, 24 Wend. (N. Y.) 169, 35 Am. Dec. 607, and note; Magee v. Scott, 9 Cush. (Mass.) 148, 55 Am. Dec. 49, and note. There can be no doubt that, to recover in trover, .a conversion, a positive tortious act. must be shown; but this is prima facie shown when the demand and refusal, stated before, between bailor and bailee, occurs, so that the onus to excuse the refusal passes thereupon to the bailee, and who, to rebute the presumption of a conversion, must adduce evidence tending to that end. — Davis v. Hurt, supra, expressly recognizes this rule in the paragraph of the opinion at the top of page 150 of 114 Ala. (21 South. 468). Other cases cited also approve the rule.

The possession -of the trunk having been shown to have once been with the defendant, it is presumed to have continued until countervailed by proof or reasonable inference therefrom. — Downs v. Bailey, 135 Ala. 329, 33 South. 151. The testimony quoted flatly, in my opinion, tended to prove a demand and a refusal to deliver the trunk. It is suggested, however, that the pronoun “you,” in the quotation, shows that that expression was a question propounded to the witness. There it .no question mark following it,. or other indications than the bare'use of the pronoun “you,” upon which to found any such interpretation. The expression is in the body of the narration of the witness’ testimony. Besides, the rule is unvarying that a bill of exceptions is construed most strongly against the party taking it and seeking thereby to put the lower court in error; that presumptions are indulged to sustain, not to reverse, judgments appealed -from. If the expression that the agent refused to delived the trunk is interpreted as a question asked the witness, the operation is based solely on a construction of this part of the bill, at most equivocal in this instance, of the utmost favor to the appellant, and of the utmost disfavor to the court rendering the judgment below, Shell is not the rule, nor the practice. The word “you” is a clerical misprision; “me” being the proper word, and the one doubtless really used, as appears from the context. The agent admitted the reception of the trunk, but'undertook to excuse the delivery by showing that the trunk was stolen at least 24 hours before the demand was made. Yet, if tbe quoted testimony is considered, that agent told plaintiff that he did not know whether the trunk was put off at Boyles or not.

The suit was well brought by both plaintiffs, both of whom had effects in the one trunk.

The judgment should, in my opinion, be affirmed.