Rozen v. Redco Corporation ( 1961 )

JOHNSON, Justice.

Action in replevin was brought by the Redco Corporation against B. P. Rozen to recover certain “reconditioned” usable oil field pipe and equipment, or the value thereof. The pipe and equipment were allegedly wrongfully taken and detained from the plaintiff by the defendant. The defendant answered by general denial.

Trial by jury resulted in a verdict in favor of the plaintiff for the recovery of the usable pipe and equipment or the value of same in the sum of $2,592.45. This verdict was approved by the trial judge and judgment rendered accordingly, resulting in this appeal.

Defendant Rozen interposes several contentions of error, but the principal and material contention is that under 12 O.S. 1951 § 1571, et seq., a replevin action cannot be maintained against him because he was not in the actual or constructive possession of the property in question at the time the replevin action was commenced. Citing General Finance Corporation v. Jackson, Okl., 296 P.2d 141, and other cases of similar import. On the other hand, plaintiff Redco contends that an action of replevin will lie against a party who, as did the defendant, wrongfully obtained possession of its property and wrongfully disposed of or concealed the property prior to the commencement of the replevin action; and, that such action against such party in wrongful possession cannot be avoided by the wrongful destruction or disposal of the property before the commencement of the suit. Citing Bales v. Breedlove, 96 Okl. 280, 222 P. 542; Beck et al. v. Day, 178 Okl. 310, 62 P.2d 1014; Anderson v. Boneman, 199 Mich. 532, 165 N.W. 830; Andrews v. Hoeslich, 47 Wash. 220, 91 P. 772, 18 L.R.A.,N.S., 1265; Cutten et al. v. Kostyrka et al., 203 Misc. 940, 118 N.Y.S.2d 194; and Rathbun v. Hill, 129 Cal.App. 601, 19 P.2d 64.

The distinction between the case of Bales v. Breedlove, supra, and the other cases cited by the defendant is that in those cases the possession of the defendant was not wrongfully obtained. This element, in our opinion, creates a situation which is an exception to the rule announced in those cases and is fully sustained by the authorities cited herein.

Defendant admitted taking junk oil field pipe and equipment from plaintiff’s place of business under an agreement with the plaintiff and processing it as scrap iron and selling it, but denied (and so testified) that he ever took any usable pipe or equipment. However, the plaintiff’s evidence showed that the defendant took both junk and usable oil field pipe and equipment, and that plaintiff sought to recover only the usable pipe and equipment wrongfully taken in its replevin action.

Thus, under the defendant’s defense and under the elementary rules of evidence, the question of whether or not the defendant wrongfully took plaintiff’s usable pipe and equipment and disposed of it was a question of fact for the jury, and the jury having determined that question in favor of the plaintiff, such settled fact now inheres in the judgment, and unless we are able to say that such determination or finding is not reasonably sustained by the evidence or is contrary to law, the verdict and judgment must be sustained; and this applies to the jury’s findings of the value of plaintiff’s property unaccounted for by the defendant. From our examination of the record we are of the opinion that the verdict and judgment based thereon is reasonably sustained by the evidence and inferences to be drawn therefrom. Therefore, we now consider the question of law (raised by the defendant) of whether, under the facts and 12 O.S.1951 § 1571 et seq., supra, the plaintiff could maintain his action in replevin.

If the defendant came into possession of usable pipe and equipment, and the jury found that such was the case, then defendant’s possession of the usable property was in its inception wrongful and remained wrongful. Accordingly, the fact that defendant was not in (fact in) possession of the usable property sought to be replevined at the time this action was filed is not fatal and does not bar plaintiff’s action as a matter of law, but such case conies within the exception to the general rule relied on by the defendant. Such exception is found in 12 O.S.1951 § 1580; Sec. 35, 46 Am.Jur., Replevin, page 23; Cobbey on Replevin, Second Edition, Section 66, and applied in Eddings v. Boner, 1 Ind.T. 173, 38 S.W. 1110 and Beck et al. v. Day, supra, and other authorities too numerous to mention, but some of which are cited in the above authorities.

The rule as stated in 46 Am.Jur., Re-plevin, Séc. 35, supra, is as follows:

“In a number of jurisdictions, however, the rule has been established that an action of replevin is not defeated by the fact that the defendant has parted with the possession of the property sought to be recovered, where such transfer was made in bad faith, with the intention of resisting or defeating its recovery. In defense of the rule it has been pointed out that permitting the defendant to set up as a defense to the action the fact that he has parted with the possession of the property, when this was done wrongfully, would be allowing him to take advantage of his own wrong. It would enable one who had wrongfully taken or detained property from the owner to refuse to deliver, and hold to the last moment before the writ, and then evade a suit by a transfer of possession. His successor might do the same; and his after him; and so on, until the cost of successive writs would exceed the value of the property.”

And in Section 66, (Cobbey on Replevin, supra) the rule has been stated thusly:

“ * * * A person in possession of goods without right cannot avoid an action of replevin by transferring the possession to another, even though the transfer be made before the commencement of the suit. But of course the only result of the suit under such circumstances would be a money judgment. Replevin will lie although the defendant has parted with the possession of the property, and it has passed beyond the reach of the process of the court.”

And in the Eddings v. Boner case, supra, construing Section S181 of the Mansfield Digest, as the Laws of the Indian Territory (which statute is identical with Section 1580, 12 O.S.1951) that court said [1 Ind. T. 173, 38 S.W. 1113]:

“In an action to recover possession of personal property, the plaintiff may avail himself of coercive remedies provided by the statute on replevin, or he may bring an action for the recovery of the property without resorting to such remedies. In such case, if the plaintiff recovered, he would be entitled to a personal judgment against the defendants for the return of the property, or its value, with damages for its detention, and to execution, if necessary. Mansf. Dig. § 5181. In Harkey v. Tillman, 40 Ark. 551, it is held that one wrongfully obtaining property, and refusing to deliver it on demand, may be sued in replevin, though he has parted with the possession at the time of the suit. The court in that case say that this is the common law as to detinue, and it applies in all states where compensation in place of the property can be given in replevin, which thus becomes a substihiie for detinue.” (Emphasis supplied.)

This court in Beck et al. v. Day, supra, distinguished the cases relied upon by this defendant and in applying the above quoted rule held against the contention that replevin was not proper even though the uncon-tradicted evidence disclosed that the defendants were not in possession of the property sought to be replevied, at the time the action was brought, and said therein [178 Okl. 310, 62 P.2d 1016] that “(I)t is a fundamental maxim that one cannot take advantage of his own wrong” and held in effect that a replevin action could be maintained against a person in wrongful possession of property who had disposed of the same prior to commencement of the action.

Under the facts narrated and the authorities hereinabove cited, the judgment of the trial court is affirmed.

WILLIAMS, C. J., and WELCH, DAVISON, IRWIN and BERRY, JJ„ concur. BLACKBIRD, V. C. J., and HALLEY and JACKSON, JJ., dissent.