Platt v. Tuttle , 23 Conn. 233 ( 1854 )

Hinman, J.

The mistake of the plaintiff in error, in this case, consists in a misapplication of the principles, applicable to an action on the case.for negligence, to this action of trover. The gist of the action of trover is, the unlawful conversion of the plaintiff’s property, irrespective of the manner in which the defendant obtained the possession of it. The theory of the action is, that the' defendant found the property which had previously been lost by the plaintiff; but this is wholly immaterial. If it is taken forcibly from the plaintiff, it is sufficiently lost to him; and the loss would seem to be none the less real, because he lost it carelessly. The gravamen of the whole matter is, that the defendant has converted to his own use property which belonged to the plaintiff. If he has done this, it would seem that he ought to pay for it; not, in any sense, as a compensation for the plaintiff’s carelessness, but as a compensation for the property that he wrongfully withholds from him.

The plaintiff in error is also mistaken in supposing it a matter of any importance, whether the defendant was or was not benefitted by his conversion of the property. He asked that the jury, should be charged, that if the plaintiff’s heifer came into his drove without his knowledge, and he ignorantly drove her off, so that she was lost to the plaintiff, and the defendant was not thereby benefitted, the plaintiff could not recover. This claim withdrew from the consideration of the jury, the conversion of the animal. It is obvious that he might have converted the heifer to his own use, and still have received no benefit from it; and if he did so convert her, then he ought to pay for her, because she would be equally lost to the plaintiff, whether the defendant made it a profitable conversion, or otherwise.

The charge is a little involved, but taking it altogether, we think the jury must have understood it as we do, that if the defendant voluntarily took the animal, and so disposed of her that she was lost to the plaintiff, such taking was a conversion that rendered the defendant liable in trover; and that this was so, whether he took her by mistake, supposing her to belong to his drove, or otherwise. We think this a con-ect proposition, and consequently, there is no error in the judgment complained of.

In this opinion the other judges concurred.

Judgment affirmed.