Burns v. Cline

Alabama Court of Appeals

Burns v. Cline

77 So. 429, 16 Ala. App. 279, 1917 Ala. App. LEXIS 315

CourtAlabama Court of Appeals

DecidedDecember 18, 1917

Docket7 Div. 439.

StatusPublished

This text of 77 So. 429 (Burns v. Cline) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burns v. Cline, 77 So. 429, 16 Ala. App. 279, 1917 Ala. App. LEXIS 315 (Ala. Ct. App. 1917).

Pincite

Opinion

BRICKEN, J.

This suit was brought by H. T. Burns (appellant) against A. R. Cline to recover damages for the conversion of a horse. The contention of the plaintiff is that he hired'his horse to the said Cline for a certain time and for a certain purpose, and that the defendant had converted said animal, in that he used the horse for a longer time and for a different purpose, and as a result of the alleged use of the horse in violation of the terms of the bailment the horse was injured and finally died, resulting in damage to plaintiff for the amount sued for, etc.

The defendant insisted, and his testimony tended to • show, that he hired said horse from the plaintiff for $1 per day, for. as long as he wanted the animal, and that he used it for the purpose for which it was hired, and that the horse was in good condition when he was delivered back to plaintiff. It appears from the evidence that the horse died in 16 or 17 days after it was returned to plaintiff by the defendant. There were several counts in the complaint, and this appeal is predicated upon one assignment of error only, which is that the lower court erred in giving the affirmative charge requested by the defendant in writing as to count 3 of the complaint, which was a simple count for conversion. ,

[1, 2] The general rule is that, if a bailee having authority to use- a chattel in a particular way uses it in a different way or to a greater extent than authorized, such unauthorized use is a conversion of the chattel for which the bailor may maintain an action of trov.er for its value. The burdeij of proof where a conversion for misuse is relied upon for recovery is upon the plaintiff, just as it is in any other action for a conversion.

[31 The gravamen of counts 1, 4, and A ot the complaint is conversion of the horse by the using of him in a way in violation of the terms of the agreement under which the defendant acquired possession of the animal, and upon these counts the case was submitted to the jury. -It follows, therefore, that *280 if the giving of the affirmative charge for defendant as to count 3 of the complaint is error, it is necessarily error without injury, as the plaintiff under counts 1, 4. and A had all the advantage he could have received under count 3 of the complaint, as every element necessary to prove conversion could have been proven under these counts. There appears no error in the record, and' the judgment of the lower court is affirmed.

Affirmed.

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BRICKEN, J.

This suit was brought by H. T. Burns (appellant) against A. R. Cline to recover damages for the conversion of a horse. The contention of the plaintiff is that he hired'his horse to the said Cline for a certain time and for a certain purpose, and that the defendant had converted said animal, in that he used the horse for a longer time and for a different purpose, and as a result of the alleged use of the horse in violation of the terms of the bailment the horse was injured and finally died, resulting in damage to plaintiff for the amount sued for, etc.

The defendant insisted, and his testimony tended to • show, that he hired said horse from the plaintiff for $1 per day, for. as long as he wanted the animal, and that he used it for the purpose for which it was hired, and that the horse was in good condition when he was delivered back to plaintiff. It appears from the evidence that the horse died in 16 or 17 days after it was returned to plaintiff by the defendant. There were several counts in the complaint, and this appeal is predicated upon one assignment of error only, which is that the lower court erred in giving the affirmative charge requested by the defendant in writing as to count 3 of the complaint, which was a simple count for conversion. ,

[1, 2] The general rule is that, if a bailee having authority to use- a chattel in a particular way uses it in a different way or to a greater extent than authorized, such unauthorized use is a conversion of the chattel for which the bailor may maintain an action of trov.er for its value. The burdeij of proof where a conversion for misuse is relied upon for recovery is upon the plaintiff, just as it is in any other action for a conversion.

[31 The gravamen of counts 1, 4, and A ot the complaint is conversion of the horse by the using of him in a way in violation of the terms of the agreement under which the defendant acquired possession of the animal, and upon these counts the case was submitted to the jury. -It follows, therefore, that *280 if the giving of the affirmative charge for defendant as to count 3 of the complaint is error, it is necessarily error without injury, as the plaintiff under counts 1, 4. and A had all the advantage he could have received under count 3 of the complaint, as every element necessary to prove conversion could have been proven under these counts. There appears no error in the record, and' the judgment of the lower court is affirmed.

Affirmed.

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Bluebook (online)

77 So. 429, 16 Ala. App. 279, 1917 Ala. App. LEXIS 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-cline-alactapp-1917.