Opinion
Nov. 26, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1318
James S. Bertagnolli, Colorado Springs, for plaintiff-appellee.
B. J. O'Leary, Colorado Springs, for defendant-appellant.
PIERCE, Judge.
By an opinion announced October 30, 1974, we reversed the judgment of the trial court in this case. At that time, the record did not include a stipulation of facts and our opinion was based entirely upon the inadequacy of the record to sustain the trial court's award of summary judgment to plaintiff. With the approval of the trial court, the parties agreed that the facts as set forth in the appellate brief of appellee correctly represent the stipulation and we have accepted the resubmission of the case. We withdraw our previous opinion and issue this opinion in its place. We now affirm the lower court's ruling.
Plaintiff, Aetna Casualty & surety Company, (Aetna) brought suit for conversion of an automobile. The record now reveals that a 1969 automobile was stolen from Aetna's insured in New York. Aetna paid its insured's claim and took title to the automobile. Subsequently, defendant Hollandsworth purchased the same automobile from a third party. In April 1970, Hollandsworth was notified by the F.B.I. that the automobile was stolen and he was advised to retain possession of the vehicle until the titleholder contacted him and demanded its possession. On June 3, 1970, the F.B.I. notified Aetna that the automobile was in Hollandsworth's possession. Between June 10 and June 17, Aetna's agent telephoned Hollandsworth and made an oral demand for possession. Hollands-worth at first agreed to return the vehicle but, after consulting his attorney, refused to comply with plaintiff's request. The vehicle was stolen from Hollandsworth and was totally destroyed by fire.
I.
Conversion has been defined as 'any distinct, unauthorized act of dominion or ownership exercised by one person over personal property belonging to another.' Byron v. York Investment Co., 133 Colo. 418, 296 P.2d 742.
In his answer, Hollandsworth admitted that he had possession of the automobile and, by failure to deny, admitted that Aetna was the owner of the vehicle. See C.R.C.P. 8(d). By virtur of the stipulated facts, Hollandsworth acknowledged that the vehicle had been stolen from the true titleholder, thereby admitting that his possession was unauthorized from its inception. Omaha & Grant Amelting & Refining Co. v. Tabor, 13 Colo. 41, 21 P. 925. See Bill Dreiling Motor Co. v. Traveler's Indemnity Company, 29 Colo.App. 163, 482 P.2d 999. Compare with Avis Rent-A-Car System v. Woelfel, 155 Colo. 207, 393 P.2d 551. All the material elements of Aetna's claim for relief being admitted, summary judgment was proper.
II.
Hollandaworth argues, however, that a bailment relationship was created between Aetna and Hollandsworth. Although Aetna discovered Hollandsworth's possession of the automobile in June of 1970 and made an oral demand shortly thereafter, it did not make a formal written demand for possession of the vehicle until October 1970.
Because Hollandsworth's initial possession of the automobile was unauthorized, no demand for possession was necessary to perfect Aetna's claim for relief for conversion. Colorado Kenworth Corp. v. Whitworth, 144 Colo. 541, 357 P.2d 626. Johnson v. Willey,
Simons v. First National Bank,Judgment affirmed.
BERMAN and STERNBERG, JJ., concur.