Conner & Johnson v. Allen & Reynolds

33 Ala. 515

Opinion

PICE, C. J.—

Trover is one of the actions, the boundaries of which are distinctly marked and carefully preserved by the Code. A conversion is now, as it has ever been, the gist of that action, (Harris v. Hilman, 26 Ala. 380;) aod withoufipfborpf it, the plaintiff cannot recoven, whatever else he may prove, or whatever maybe his right, of recovery in another form of action.

“ Whoever undertakes tortiously to deal with the property of another as his own, or tortiously detains it from the owner, is, in contemplation of law, guilty of a conversion.” Watt v. Potter, 2 Mason’s P. 77. “A conversion, in tba. ■sense of the law of trover, consists either in the appropriation of the thing to tho party’s own use and beneficial enTovinent. or in its destruction, or jp exercising dominion over it. in exclusion or defiance, of the ylaintiff’s right, or inwithliolding the possession from tlie plaintiff, under a cTcchn of title inconsistent with his own”—2 Groenleaf on Ev. § 642. But the use, or disposition, or detention of a thing, that “might be a tort under one circumstance, might, if done under others, assume a different appearance;” as for example, if tlie use, disposition, or detention, was to do a kindness to the owner, and without any intention of injury to the thing, or of converting it to the use of the person using, disposing of, or detaining it, and was merely conservative of it, and perfectly consistent with the right of the owner, and his dominion over it.—2 Greenlf. on Ev. § 648; Drake v. Shorter, 4 Esp. R. 165; Sparks v. Purdy, 11 Missouri R. 219; Watt v. Potter, 2 Mason’s R. 77; Glover v. Riddick, 11 Iredell, 582; Dent v. Chiles, 5 Stew. & Por. 383.

[2.] When, as in this case, there is evidence tending to show a reasonable excuse for the act or conduct of the defendant which is relied on by the plaintiff as proving or tending to prove a conversion, the jury are to judge, under proper instructions from the court, of the reasonableness of the excuse, and whether, under all the circumstances, there has been a conversion.—Dent v. Chiles, supra; and Watt v. Potter, supra.

The charge of the court below is in conflict with the law, as above declared, and is erroneous. For the error in the charge, the judgment is reversed, and the cause remanded.