Carson v. Hunkins

This is an action of trover for the conversion of an automobile. Plaintiff had judgment below and defendant appeals. The petition contains the usual allegations in actions of this kind. The answer is a general denial coupled with an affirmative plea, which reads thus: "And further answering, and by way of defense, this defendant says that he purchased an automobile from one Green for the price and sum of $125, and that said automobile was delivered to him, and he paid the said amount of money therefor to the said Green; that said Green was the chauffeur in the employ of the plaintiff Clyde Carson and was the duly authorized agent vested with full power and authority to effect a valid sale of the said automobile, and that said Green sold said automobile to this defendant as the agent of and under the full authority of the plaintiff Clyde Carson, and, therefore, plaintiff has no right, title or interest in *Page 108 or to said automobile; and having fully answered, defendant prays that he may go hence with his costs in this behalf expended." Plaintiff's reply was a general denial. At the close of all the evidence in the case the court gave to the jury the following peremptory instruction: "The court instructs the jury that you shall find a verdict in this case in favor of the plaintiff Carson and against the defendant E.D. Hunkins in such sum as you may find from the evidence is the reasonable market value of the automobile in question at the time of the sale to Hunkins." The sole question raised by the appeal is whether or not the trial court erred in giving said instruction. The question under consideration necessitates a review of the evidence. It appears from plaintiff's testimony that in April, 1918, he was the owner of a certain National six-cylinder roadster automobile, which he kept at the garage of the St. Louis Taxicab Company. On April 9, 1918, plaintiff ascertained that a man by the name of Green, who was employed by plaintiff as his chauffeur, had taken the car away from said garage the day before. He located the car, through the police department, in the possession of the defendant, who operated a garage at Vandeventer and Washington avenues in St. Louis. After identifying the car plaintiff made a demand for it upon defendant and was told by him that he had purchased the car from Green for one hundred and twenty-five dollars. The car at the time was somewhat dismantled and the defendant requested plaintiff to come back the next day and he would then deliver the car to him. Plaintiff did so, and finding that the car was gone inquired of defendant where it was, and was told by him that he would have a "hell of a time" finding it. The evidence on the part of the plaintiff tended to show that the reasonable market value of the car was fifteen hundred dollars. The chauffeur Green disappeared after he sold the car and his whereabout was not *Page 109 known at the time of the trial. Plaintiff never regained possession of the car, and brought this suit in conversion. The defendant in his own behalf testified that Green had brought the car to his place of business and had left it there for storage; that Green told him he was allowed to sell it; that he did not ask him who the owner was but judged from the time Green had had it that he evidently was, and made no further inquiry about the car; that he bought the car from Green for one hundred and twenty-five dollars, which sum he paid him. Defendant further testified that he first met the plaintiff two days after buying the car. There was evidence, on the part of the defendant, to the effect that plaintiff had on one or two occasions, in the presence of Green, undertaken to sell the car and that Green did some of the talking when said negotiations were being conducted. Mr. White, a witness for the defendant, testified that the plaintiff and Mr. Green came to his garage one day and that Mr. Green did all the talking; that Mr. Green at that time attempted to get him to take the automobile in question in trade, that he never told witness he was a chauffeur, but simply said that he was a representative of the plaintiff. There was no testimony to indicate that the defendant was present at any of the above mentioned conversations, nor was there any proof tending to show that plaintiff at any time stated that he had authorized Green to make a sale of the car. The above was all the evidence in the case in support of defendant's plea that Green was the duly authorized agent of the plaintiff and sold the automobile under authority of the plaintiff to the defendant. In passing upon the question under consideration we must bear in mind that under the pleadings in this case there is no issue raised as to the ownership of the machine. Defendant in his answer admits that the plaintiff was the owner, but he alleges that he purchased the car from plaintiff through his agent Green. *Page 110 The burden was upon the defendant to prove that Green was authorized by the plaintiff to make the sale. This was the only issue of fact in the case. There was no evidence whatsoever of the authority of Green to sell the machine, nor anything from which such authority might be inferred. There was, therefore, no question of fact in the case to be submitted to the jury. The peremptory instruction was properly given. [Janes v. Levee Dist. No. 2, 183 S.W. 699; Renick v. Brooke, 190 S.W. 642; Johannes v. Union Fuel Co., 199 S.W. 1033; Sturdivant Bank v. Houck, 215 S.W. 759; Mathes v. Lumber Co., 173 Mo. App. 246, 158 S.W. 729; Wade v. Boone,184 Mo. App. 98, 168 S.W. 360; Matlock v. Paregoy, 188 Mo. App. 103, 173 S.W. 8; Knoche v. Whiteman, 86 Mo. App. 573; Johnson v. Hurley,115 Mo. 519, 22 S.W. 492.] It follows that the judgment should be affirmed. The Commissioner so recommends.