Warwick v. Baker

Smith, P. J. The only question in this case is whether the petition is sufficient which stated that at the county of Putnam the defendants, ‘ ‘ without leave, forcibly and wrongfully drove away the following described personal property belonging to the plaintiff (description omitted), which was of the value of one hundred and twenty dollars, and that said defendants have not returned the same; that the plaintiff was damaged by the taking and driving away of the property in the sum of one hundred and twenty dollars.” Tested by the rule of pleading laid down in Stillwell v. Hamm, 97 Mo. 579, which is to the effect that the language of a pleading should be taken in its plain and ordinary meaning, and such an interpretation given it as fairly appears to have been intended ' by the pleader, we must regard the petition in question as containing all the ingredients essential to constitute an action for the conversion of personal property. It is in the usual form in cases of trespass de bonis asporiatis. [442] Form, number 25, cited by plaintiff, and which is to be found in page 705, Revised Statutes, 1879, was recommended in 1855 by the revisers of the statutes, and has been continued in each successive revision. While it has not legislative or judicial sanction it has been constantly in use, and as far as we know has not before been questioned by any member of the profession. It is not an authoritative precedent which is absolutely binding on the judiciary, but it is not without persuasive force in the consideration of a question of this kind. The petition alleges that the defendants, “without leave, forcibly and wrongfully drove away” certain ■cattle belonging to plaintiff, and have not returned the same. The doctrine now is that any taking or assumption ■of a right to control or dispose of property constitutes a conversion. Any wrongful act which negatives or is inconsistent with the plaintiff’s right is per se a conversion. Allen v. McMonagle, 77 Mo. 478; Ireland v. Horseman, 65 Mo. 511; Williams v. Wall, 60 Mo. 318; Sparks v. Purdy, 11 Mo. 219 ; State v. Berning, 74 Mo. 87 ; Hanson v. Jacob, 93 Mo. 340; Norman v. Horn, 36 Mo. App. 422. A wrongful assumption of the property is itself a conversion, and not merely evidence of it. 1 Hilliard on Torts, 1.00, 101. A conversion may be proved by a tortious taking. Nanson v. Jacob, 93 Mo. 331; 3 Rob. Prac. 462. The prevailing rule is that trover maybe maintained for the taking of goods whenever trespass will lie. Trespass is itself a conversion of the property sufficient to maintain the action. 1 Hilliard on Torts, 100, 101; Ireland v. Horseman, 65 Mo. 511; Matheny v. Johnson, 9 Mo. 232. In an action for conversion if the petition avers a wrongful or tortious taking it is sufficient. Norman v. Horn, 36 Mo. App. 419. And so the allegation that the property wrongfully taken away by defendant belonged to the plaintiff is that of title, which carries with it the possession, and this is sufficient to support the action. Brown v. [443] Hartzell, 87 Mo. 567; Cochran v. Whitesides, 34 Mo. 418; More v. Perry, 61 Mo. 174. . So that the allegation of the petition, according to the principles to which we have referred, are, we think, sufficient to support the action. Onr attention has been called to no other errors in the record, and it results, that the judgment will be affirmed. All concur.