Winter Bros. v. Jackson

Quillian, Judge,

concurring specially. I concur in the majority opinion. My conclusion that the evidence did not authorize the verdict is not based upon any witness’s denomination of the chattels for the recovery of which the suit was brought as “junk”.

The petition alleged a specific amount as the market value of the articles therein described and alleged to have been converted by the defendant. The petition, alleged the conversion of the chattels in two ways: one the demolition of the same by the defendant at his direction; the other by taking them into his possession and exercising dominion over them. The plaintiff testified to the aggregate market value of the items stolen from him, and offered no evidence as to the value of each or any of the articles severally. So unless all of the articles were proven to have been converted by the defendant no' data was furnished the jury upon which a money verdict could be predicated. The plaintiff relied upon the testimony of one of the thieves to prove some of the articles were demolished at the request of the defendant, before he purchased them. The evidence fell short of the mark, for while the thief testified that he reduced some of the articles to “junk” at the direction of a man from Winter’s, there was no proof that the defendant authorized the man to act in his behalf in the transaction. Indeed, there was a complete failure to prove the articles were damaged at the behest or even with the knowledge of the defendant. Hence, when the articles came into the possession of the defendant there was no proof of their value. There was no evidence that all of the articles described in the petition, or the value of which was included in the plaintiff’s estimate of the value of all of the articles, ever came into the defendant’s possession.

The evidence simply failed to show the value of the articles converted by the defendant, and furnished no information from which their value could be ascertained.