Summary
In Ben Cooper Motor Co. v. Amey, 143 Okla. 75, 287 P. 1017, we held that a man is not required to use physical force to resist the taking of his property by another; that the circumstances of each case must be considered in determining whether the taking was without the consent of the owner, and that generally it is a question for the jury.
Summary of this case from Shelby v. Hudiburg Chevrolet, Inc.Opinion
No. 19413
Opinion Filed April 29, 1930.
(Syllabus.)
1. Trover and Conversion — "Conversion" Defined.
Conversion is any distinct act of dominion wrongfully asserted over personal property and inconsistent with the rights of the owner.
2. Same — Question for Jury — Forcible Repossession of Car from Mortgagor.
Where the agent of the mortgagee demanded possession of the automobile from the mortgagor — or purchaser under conditional sales contract — which was refused, and mortgagor told him not to take the car and refused to turn over the car key, then the agent of the mortgagee proceeded to take the car and tow it away, held, the question of conversion was properly submitted to the jury.
Commissioners' Opinion, Division No. 2.
Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.
Action by Enoch Amey against Ben Cooper Motor Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Saunders Emerick and J. Knox Byrum, for plaintiff in error.
Goode Dierker, for defendant in error.
Enoch Amey brought suit against Ben Cooper Motor Company for conversion of a Dodge automobile. The defendant answered by a general denial. On trial evidence was introduced on behalf of the plaintiff to show that he bought a secondhand Dodge automobile from the defendant; that he was delinquent in payments on the purchase price; chattel mortgage or conditional sales contract held by the defendant; that the defendant, through its agents, came to plaintiff's home to repossess the car. The plaintiff testified that he told the spokesman, one of the two men who came after the car, that he had an agreement with the defendant for time in which to reinstate his payments, and that "I told him that he could not get the car until I would go in and see Mr. Cooper. * * *" The daughter of the plaintiff testified: "He told papa he come for the car, and papa told him not to take the car until he seen Mr. Cooper, and they said there wasn't no use making two trips because Mr. Cooper was going to take it." Jack Wellington, the agent of the defendant who went after the car testified in part:
"Q. Now, did you have any conversation then about the car? A. I did. I told him I had come down there after that car, the Dodge that was there at this place. Q. What did he say? A. He says, 'It is setting around there in the garage.' Q. Anything else said? A. That was all. * * * Q. Was that all he said to you about taking the car? A. That was all he said. Q. Did he make any protest to your taking the car? A. None whatever."
He also denied that the plaintiff told him not to take the car. It was stated on behalf of plaintiff, and undenied, that plaintiff refused to turn over the car key and that the car was towed away.
The only question in the case is whether or not the verdict for the plaintiff and against the defendant is sustained by the evidence. The court refused to sustain a demurrer to the plaintiff's evidence, refused to instruct a verdict for the plaintiff, and refused to grant motion for a new trial filed by the defendant after the verdict was returned and judgment entered.
The law with reference to the right of possession and method of taking possession of chattels by the holder of a chattel mortgage, or the holder of title under conditional sales contract, is the same. This court has frequently discussed the situation, holding that the holder of a chattel mortgage, when conditions of the mortgage have been broken, may take possession of the mortgaged property, yet neither the mortgagee nor anyone in his behalf has the right to take possession of such goods by force or threats of violence and without consent of the mortgagor. The law will not permit a mortgagor to threaten a breach of the peace, or commit a breach of peace, and then to justify his conduct by trial of the right of property. Conversion is any distinct act of dominion wrongfully asserted over another's personal property or inconsistent with his rights. Ray v. Navarre, 47 Okla. 438, 147 P. 1019; Wilson Motor Co. v. Dunn, 129 Okla. 211, 264 P. 194; Rogers v. Benford, 83 Okla. 270, 201 P. 646; Firebaugh v. Gunther, 106 Okla. 131, 233 P. 460; Wagoner v. Koon, 67 Okla. 25, 168 P. 217; Morgan v. Stanton Auto Co., 142 Okla. 116, 285 P. 962. It is not necessary for a man to have a gun to take forcibly property from another and convert the same. A man is not required, in defending his property, to use physical force to resist the taking thereof by another. If he tells the other not to take the property, and the other person, in the face of the instruction, proceeds to take it, that may be conversion. The circumstances of each case must be considered in determining whether or not "a breach of peace" has taken place, and the jury is the judge of the facts. In this case, the resistance by the plaintiff made to the taking of his automobile by the agent of the defendant was not strong, and we would not say that the words used by the plaintiff in resisting the taking of his automobile were in themselves, as a matter of law, sufficient to make conclusively the taking thereof conversion. J.I. Case Threshing Machine Co. v. Barney, 54 Okla. 686, 154 P. 674. However, in view of the other attending facts and circumstances, the facts were properly submitted to the jury, and the evidence reasonably sustains the verdict of the jury.
Further complaint was made that the instructions by the court given were not complete and did not cover all the issues of the case. Inasmuch as the only questions which could have been submitted to the jury were the rightful or wrongful taking of the car and the value of the car, and those questions were submitted to the jury by instructions to which exceptions were not taken, we find no error therein. The cause is therefore affirmed.
BENNETT, DIFFENDAFFER, FOSTER, and HERR, Commissioners, concur.
By the Court: It is so ordered.
Note. — See under (1) 26 R. C. L. p. 1098; R. C. L. Perm. Supp. p. 5842. See "Chattel Mortgages," 11 C. J. § 297, p. 596, n. 47. "Trover and Conversion," 38 Cyc. p. 2005, n. 1.