Cotton v. Harris Transfer & Warehouse Co.

SAMFORD, J. The second count in the complaint claims damages as for the conversion of the merchandise therein described, is in the Code form, and is sufficient. Under this count, if the defendant, knowing the goods were not his, wrongfully converted them to his own use, although such goods had been delivered to him under the mistak *139 en belief that they were his, such act would ’ constitute a conversion for which this action would lie. Thus a finder of lost property who takes possession of it becomes bound to safely keep it and to restore fit to the owner. This is the requirement of honesty and justice between men, and the law implies such a contract as is necessary in such eases. The tendencies of the evidence were such in this ease as would authorize the jury to find a verdict for the plaintiff under count 2; and therefore the affirmative charge as requested by defendant was properly refused. Davis v. Hurt, 114 Ala. 146, 21 So. 468; Riddle v. Blair, 148 Ala. 461, 42 So. 560; 3 R. C. L. 83; 6 Corpus Juris, 1102, par. 19. In order for the jury to find for the plaintiff under count 2, the evidence should convince them reasonably that the defendant exercised an illegal assumption of ownership or that he wrongfully detained the goods. A nonfeasance or neglect of legal duty, mere failure to perform an act obligatory by contract, or by which property is lost to the owner, will not support an action for conversion. Bolling v. Kirby, 90 Ala. 215, 7 So. 914, 24 Am. St. Rep. 789. In the case at bar the goods were delivered into the possession of defendant. He knew they were there in his storehouse. He knew they had been delivered by mistake and were not his. When called for a short time afterwards by the rightful owner they were gone, or at least so defendant said. The burden rested on the defendant of convincing the jury that he did not still possess them or had not illegally disposed of them. In this connection it seems to us pertinent to consider the following charge, given in writing at the request of the plaintiff, to wit: “I charge you, gentlemen of the jury, that you cannot find for the defendant unless you are reasonably satisfied from the evidence that the negro to whom the ease of merchandise is alleged to have been delivered had apparent authority to receive the same for plaintiff.” This charge pretermits a consideration of the evidence tending to prove plaintiff’s case and the other evidence for defendant tending to acquit himself of negligence regarding the merchandise. The charge is invasive of the province of the jury and should have been refused. The mere failure to return on demand property which has been left in the possession of a defendant does not alone constitute a conversion, and, while the facts might be sufficient to authorize the jury to find that a conversion had taken place, that question was for the jury and not for the court. Pollard v. Pollard, 207 Ala. 270, 92 So. 488. The case made by counts 4, 5, and 6 is that plaintiff, through and by one of its employee draymen, delivered by mistake a ease of clothing to defendant, and that the defendant wrongfully received the merchandise; that upon discovery of the wrongful delivery plaintiff notified defendant, and further notified defendant that plaintiff would send one of its servant^ to get the merchandise. Defendant recognized the mistake, made no claim to the merchandise, and agreed to deliver same to plaintiff’s servant upon demand. Plaintiff sent his servant for the merchandise and made the dem.and for its return, but defendant failed to make the delivery, claiming to have delivered same to some unknown, who called and claimed to be the servant of plaintiff sent for the purpose of receiving the merchandise. Plaintiff avers that this was gross negligence on the part of defendant, as a proximate cause of which the case of clothing was lost to plaintiff. The facts as made by the 'pleading are sufficient to charge defendant as a naked bailee of the case of merchandise. 6 Corpus Juris, 1104, par. 25. Being such, the obligation resting on the defendant to the plaintiff was only to exercise slight care with respect to the merchandise, and he was only liable for gross negligence or bad faith in respect thereto. Thomas v. Hackney, 192 Ala. 27, 68 So. 296. The evidence as set out in the record does not make a case for the affirmative charge upon either count in the complaint. The second count is for the conversion of the goods. To sustain that count the plaintiff must reasonably satisfy the jury from the evidence that it had such title as would warrant a recovery. This is not a disputed question. It must prove a delivery of the goods to defendant, and not merely that the case of merchandise was by mistake left in the door of his warehouse, and over which he assumed no dominion or control. This was disputed, and as to which there were conflicting inferences to be drawn from the evidence. If the jury should find that defendant in fact received the merchandise, then did he convert it to his own use or to the use of another? This, too, was a disputed fact on which the testimony was conflicting. Coming now to the three counts claiming for gross negligence: Was the defendant a naked bailee of the goods? Under the plaintiff’s evidence the jury would be justified in finding that he was. Under defendant’s evidence the jury would be justified in finding he was not. If he was such bailee, then it was defendant’s duty to plaintiff not to be grossly negligent in regard to the property which had come into his possession through and by the mistake of plaintiff’s drayman. Defendant’s plea 5, if proven to the reasonable satisfaction of the jury, is a complete answer to the complaint. Upon these propositions the trial judge properly and fully charged the jury, and his several rulings on •requested written charges were without error. *140 Eor tlie error pointed out, the judgment is reversed, and the cause is remanded. Reversed and remanded. BRICKEN, P. J., dissents.