Henson v. Markowitz

341 S.W.2d 311, 1960 Mo. App. LEXIS 433
CourtSupreme Court of Missouri
DecidedDecember 20, 1960
DocketNo. 30447
StatusPublished
Cited by1 cases

This text of 341 S.W.2d 311 (Henson v. Markowitz) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henson v. Markowitz, 341 S.W.2d 311, 1960 Mo. App. LEXIS 433 (Mo. 1960).

Opinion

RUDDY, Judge.

This is an action for unlawful conversion by defendants of certain personal property of the plaintiff. The verdict of the jury for actual and punitive damages was in favor of plaintiff. From the judgment entered by the court, defendants appeal.

The sole point relied on by defendants is that the trial court erred in overruling defendants’ motion to dismiss plaintiff’s petition. Defendants contend that the petition fails to state a claim upon which relief can be granted.

The pertinent parts of the petition are as follows:

“Comes now the plaintiff and, for his cause of action states:
“1. That on or about the fourth day of November, 1954, plaintiff stored items of personal property hereinafter listed with the defendants and defendants accepted said items of personal property for storage and safekeeping for a monthly charge of Three Dollars ($3.00).
“2. That between the time of November 30, 1954 and February 15, 1955, the said defendants appropriated and converted to their own use all of said items of personal property belonging to the said plaintiff, and that on or about February 15, 1955, plaintiff made a demand on defendants to return his said personal property but defendants willfully refused and still refuse to return said personal property to plaintiff.
“3. The personal property of plaintiff heretofore mentioned in Paragraph 1 of plaintiff’s petition is herein more fully described: (Here follows an itemization of furniture, clothing, books, and other miscellaneous items.)
“4. That the reasonable market value of said items of personal property is in the sum of One Thousand Dollars ($1,000.00).
“5. That the defendants willfully, maliciously, wantonly, wrongfully, and unlawfully converted said personal property to their own use and to the damage of plainfiff, for which plaintiff prays punitive damages in the sum of Four Thousand Dollars ($4,000.-00), against the defendants as punishment for their unlawful acts heretofore set out.”

Defendants contend that the petition fails to state a claim for two reasons, the first of which is, that it fails to aver that plaintiff was in or entitled to the possession of the personal property in question at the time of the conversion.

In this connection defendants assert that the failure to allege that plaintiff had the possession or the right to possession of the [313]*313personal property at the time of the alleged ■conversion is a fatal deficiency in said petition, further asserting that a mere allegation of ownership is not enough, citing in support of their contention the cases of ■Citizens’ Bank of St. Louis v. Tiger Tail Mill & Land Co., 152 Mo. 145, 53 S.W. 902, and O’Toole v. Loewenstein et al., 177 Mo.App. 662, 160 S.W. 1016.

The aforesaid cases do hold that if a petition fails to state that plaintiff had possession or the right to possession of the property sued for at the time of conversion, it is insufficient. However, these same cases and many others hold that if a petition states facts from which it can be legally inferred that plaintiff had possession or right of possession at the time the property was converted, it is sufficient. Cammann v. Edwards, 340 Mo. 1, 100 S.W.2d 846, and National Surety Company v. Hochman, Mo., 313 S.W.2d 776.

In the case of O’Toole v. Loewenstein et al., supra [177 Mo.App. 662, 160 S.W. 1018], relied on by defendants, the court said the petition would be sufficient if it stated “such facts as revealed a right of possession in” plaintiff at the time of the conversion. It is significant to note other language of this court in the O’Toole case found at 160 S.W. loe. cit. 1018, as follows:

“ * * * After verdict petitions are liberally construed by utilizing every implication and intendment the words therein afford, and all reasonable inferences from such words are gathered in aid of the pleader. When such implications and inferences tend with reasonable certainty to supply the omitted averment of fact, the petition is regarded sufficient * *

In the case of Citizens’ Bank of St. Louis v. Tiger Tail Mill & Land Co., supra, relied on by defendants, the court held that the petition of plaintiff showed that neither plaintiff nor its predecessor in title ever had physical possession of any of the lumber ⅛ controversy and that the petition failed to state, either expressly or by implication, that plaintiff had the possession or the right to possession of the property sued for at the time of the conversion.

The petition of plaintiff in the instant case does not allege, in express words, that plaintiff was in the possession or had the right to the possession of the property involved at the time of its conversion. But we do think it states sufficient facts from which it can be legally inferred that plaintiff was entitled to possession of the property in question at the time of its conversion.

The petition contains the following allegations :

“That * * * plaintiff stored items of personal property hereinafter listed with the defendants and defendants accepted said items of personal property for storage and safekeeping for a monthly charge of Three Dollars ($3.00). That * * * the said defendants appropriated and converted to their own use all of said items of personal property belonging to the said plaintiff, and that * * * plaintiff made a demand on defendants to return his said personal property but defendants willfully refused and still refuse to return said personal property to plaintiff.” (Italics ours.)

The terms “belonging to” and “belong” have been defined to mean “to be the property of.” See Webster’s New International Dictionary, Second Edition, Unabridged, and Vol. 5 Words and Phrases, pp. 298-308, and Pocket Part. “Belong” also has been held to mean “to be possessed.” City & County of San Francisco v. McGovern, 28 Cal.App. 491, 152 P. 980, loe. cit. 984.

Applying the aforesaid to the petition under review, we think plaintiff’s petition impliedly alleges with reasonable certainty that certain items were the property of and in the possession of plaintiff; that said property was delivered by plaintiff to de[314]*314fendants for a particular purpose, viz., storage and safekeeping, and from these facts it,is necessarily implied that plaintiff was entitled to the possession of the personal property in question at the time of its conversion. Cammann v. Edwards, supra; National Surety Co. v. Hochman, supra, and Wilkinson v. Misner, 158 Mo. App. 551, 138 S.W. 931. We rule that the petition alleges facts from which it may' be legally inferred that plaintiff was entitled to possession of the personal property involved at the time of its conversion.

The second reason given by defendants in support of their contention that the petition fails to state a claim is that it fails to aver a demand by plaintiff on defendants to surrender the personal property stored before the alleged conversion of said property. They contend that such an averment is necessary where defendants come into possession of the property rightfully as a bailee. They rely on the cases of Detmer v. Miller, Mo.App., 220 S.W.2d 739, and St.

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Bluebook (online)
341 S.W.2d 311, 1960 Mo. App. LEXIS 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henson-v-markowitz-mo-1960.