Phillips v. Brigham, Kelly & Co. , 26 Ga. 617 ( 1859 )

By the Court.

Benning J.

delivering the opinion.

Was the nonsuit right?

It was put upon the ground, that not trover, but case, was the remedy.

[1.] It is wrong to award a nonsuit, if the evidence is sufficient to authorize the jury to find for the plaintiff, although it may not be sufficient to require them to do so.

If there was a conversion of the cotton, trover was the proper remedy. This may be assumed. Of course, if trover was the proper remedy, the nonsuit was wrong.

It follows, that if the evidence was sufficient to authorize the jury to find that there was a conversion, the nonsuit was wrong.

We think, that the evidence was sufficient, to authorize the jury to find a conversion.

If the boat took the cotton from the river bank, without authority, that, it is clear, was a conversion. And the evidence was, perhaps, sufficient to authorize the jury to find, that the boat did so take the cotton.

[2.] If the boat took the cotton by agreement, but an agreement to carry the cotton to Savannah, and, instead of going the ordinary route to Savannah, went an extraordinary route, and while out of the ordinary route, the cotton was lost, that was a conversion. It would be a breach of the contract by misconduct — something positive. And every such breach of such a contract is a conversion. Wheelock vs. Wheelright, 5 Mass. 104; Stor. Bail, sections 232, 269, 396, 413.

And the evidence was sufficient, to authorize the jury to find, that the boat did start to Savannah by an extraordinary route. The evidence ivas, that the boat, after taking the cotton on board, went up the river, some ten miles, and, that before it got back to the place at which it had taken the cotton on board, the accident occurred by which, the cotton was lost. And there was no evidence that this conduct was according to any usage.

Here, then, was evidence sufficient to authorize the jury to find a conversion, provided, the act of the boat, (i. e. of the master,) is to be considered the act of the owners, who are the defendants. And, as at present advised, we think, that it is to be so considered.

The question, whether the owner of a boat or other vessel, is liable for the tortious acts of the master, is one of great importance. And it was hardly argued at all, in this case.

And hence it is, that, we merely say, that, as at present advised, we think, that if there was in this case, a conversion by the master, it was to be deemed a conversion by the owners; for we wish the general question to be considered, as still an open one.

Our conclusion, then, is, that the Court erred in awarding the nonsuit.

[3.] And this being the conclusion, it becomes unnecessary to decide the question, whether the motion to amend ought tp have been sustained. But as we have an opinion on that question, we may as well express it. We think that the motion ought to have been granted. 15 Ga. 110.

Judgment reversed.