Mann v. Weiss , 185 Mo. App. 335 ( 1914 )

REYNOLDS, P. J.

The petition in this case is in the usual form, in tort to recover damages for unlawful conversion by defendants of a diamond ring, alleged to be the property of plaintiff and of the value of $700. The answer was a general denial. The cause was tried before the court and a jury. At the close of plaintiff’s evidence in the case defendants demurred, on the ground of a total failure of proof. The court refused the demurrer, plaintiff excepting. The jury, after being instructed by the court, returned a verdict in favor of plaintiff, assessing damages at $500, from which defendants have duly perfected their appeal to this court.

Here appellants assign five errors. The first is to the refusal of the court to give the demurrer interposed at the close of plaintiff’s case, it being argued that there was a total failure of proof of the cause of action pleaded; that the proof must conform to the pleading's and that the transaction here shown was the delivery of an article at a fixed price to be paid for or returned and that that constitutes a sale, and that, to sustain an action as in trover for conversion, plaintiff must show that at the time of the alleged conversion he had possession of the property in controversy, or the right to immediate possession thereof, and if the proof establishes that defendants were in lawful possession of the property at the time of the alleged conversion and were authorized to dispose of the same, then the suit on conversion cannot be maintained.

Taking up the position of counsel as to what is necessary to sustain an action in trover for conversion, we cannot agree with counsel. The possession may be rightful in the first place, but if that possession, after demand made for the return of the article, becomes tortious, then the tort-feasor is liable. The common law action of trover, is an action “whereby the'owner of personal property may recover damag’es against a person who has committed the wrong of conversion with respect to the property.” [28 Am. & Eng. Ency. Law (2 Ed.), par. 1, p. 646.] It is founded “on the fictitious basis that the defendant came rightfully into possession and then wrongfully converted the property to Ms own use.” [Ibid, par. 5, p. 560.] Conversion is the gist of the action.

An instructive case, applicable here as to some of these positions taken by counsel, is that of Hall et al. v. Boston & Worcester R. R. Corporation, 14 Allen (Mass.), 439. That was an action in tort against the defendant, a railroad corporation, for the conversion of twenty-eight barrels of flour. The barrels of flour were in the lawful possession of the railroad corporation which made a wrongful delivery of them to an unauthorized person. The true owner suing for the conversion, a recovery was sustained, the court holding (l c. 443): “A misdelivery of property by any bailee to a person unauthorized by the true owner is of itself a conversion, rendering the bailee liable in trover, without regard to the question of due care or degree of negligence. This is a well established legal princir pie, applicable to every description of bailment.”

Our own courts have in many cases defined conversion as applicable to the act here involved, as see Wilkinson v. Misner, 158 Mo. App. 551, l. c. 555 et seq., 138 S. W. 931, and cases there, cited.

Nor is the proposition of counsel that the demurrer interposed at the close of plaintiff’s case should have been sustained, maintainable for any of the feasons assigned. We do not’ find either a total failure of proof of the. cause of action pleaded, or that plaintiff has pleaded one cause of action and that the verdict awards a recovery on another. According to the evidence in behalf of plaintiff the transaction was a depositing of the ring by the agent of plaintiff with defendants, not by way of a sale to them, as counsel here argue, but for the purpose of having them sell it for plaintiff’s account. If, instead of selling it and accounting for the proceeds, or failing to sell it, they suffered it to go out of their possession, so that it was lost to plaintiff, defendants are liable as for the conversion.

The second assignment challenges the verdict as being contrary to the preponderance of the evidence, that preponderance, it being urged, being so overwhelmingly against the verdict as to necessarily imply prejudice, passion and partiality.- Practically, and in the first place, this challenges the verdict as against the .weight of the evidence. We, as an appellate court, cannot set aside a verdict merely on the ground that it is against the weight of the evidence or the greater weight of the evidence. Nor can we agree that the evidence is so overwhelmingly in one direction as to allow us to overturn the verdict. The questions as to its weight, as to its preponderance, are all questions entirely for the determination of the trial court. Can we disturb it as evidencing passion and prejudice? In Donijanovic v. Hartman, 169 Mo. App. 204, l. c. 212, 152 S. W. 424, we said that the question of whether the verdict was the result of passion and prejudice on the part of the jury was for the trial court. That was an inadvertent misstatement of the law. It will he seen that we did, in that case, pass on that question. [See Franklin v. St. Louis & Meramec River R. R. Co., 188 Mo. 533, 87 S. W. 930. To the same effect is Cook v. Globe Printing Co., 227 Mo. 471, l. c. 539 et seq., 127 S. W. 332.] According to the law as announced in these cases, if we, as an appellate court, are convinced from an examination of the evidence, that the verdict is the result, not of judgment, but of prejudice or passion, we are not bound by it nor by the action of the trial court in overruling a motion for a new trial.

We have read the testimony in the case with great care and attention. Taking the statement made of it by counsel for appellants, it shows flat contradictions on every important fact. On this testimony, the jury found for plaintiff. The jury had the witnesses before them. They were the body to determine which version was correct; who told the truth. If the testimony for plaintiff was true and so believed to be by the jury, plaintiff was clearly entitled to recover. According to that testimony, plaintiff’s agent left the diamond ring with defendants for sale, of course to account to plaintiff for the proceeds. Defendants on demand refused to either return the diamond or to account for and pay over its value. The testimony in behalf of defendants was to the effect that the ring had never been left with them, but with another for whom they were not responsible and with whom they had no connection. That plaintiff was out the ring and its value was not controverted. On such conflicting evidence the case was absolutely one for the jury. Because' it accepted and acted on one version rather than on the other affords no evidence of prejudice or passion sufficient to warrant us in disturbing the verdict. Certainly the amount awarded fails to show prejudice or passion. The un-contradicted evidence showed the value to be about $677; the verdict is for $500'.

The third assignment of error is to the effect that a party’s declarations in his own favor are irrelevant and inadmissible. The application sought to be made of this proposition is, that on cross-examination, defendants having elicited certain testimony from the witness, counsel for plaintiff in redirect examination went further into the matter. We have many times held that when proper objection has been made and in spite of that the testimony has been admitted, the party does not lose the benefit of his objection by endeavoring to break down that testimony by cross-examination. That, however, is not the case here. The testimony complained of relating to a conversation between the witness and another party was, in part, brought out in cross-examination by counsel for defendants. In re-examination, counsel for plaintiff asked for the whole conversation. The court allowed this. We see no error here.

The fourth error is to the action of the court m giving an instruction which he did at the request of plaintiff. This instruction is criticized as being a running comment on plaintiff’s evidence, unduly emphasizing certain testimony offered by plaintiff as being unsupported by any evidence; assuming facts, the existence of which are not in the case, and, in purporting in detail to cover the entire case while omitting matters of defense. We do not find the instruction amenable to these charges. With reference to this last part of it, that purporting to cover the entire case, that it omits matters of defense, not only do we fail to find that to be so, but we find, in instructions given by the court at the instance of defendants, that defendants’ theory and view of the case were put before the jury by the court in very clear language and in as favorable terms as defendants could possibly have asked.

The last assignment of error is on what is alleged to be improper action of counsel for plaintiff before the jury. This turned on matters of fact, principally as to whether that counsel had improperly made remarks to the jury while exhibiting telegrams which were in evidence. Affidavits were introduced as to whether this had occurred. As the finding of the trial court was against the affidavits offered by defendants and is also supported by affidavits in behalf of plaintiff, we cannot question the conclusion on this fact.

Under this same assignment is also included attacks upon remarks made to the jury by counsel for plaintiff in his argument, and in one instance, to a remark of the court. We find no error in either of these particulars.

Finding no reversible error in this case, the judgment of the circuit court must be and is affirmed.

Nortoni and Allen, JJ., concur.