Defendant complains of error of the trial court in overruling his motion for directed verdict, and that the judgment is against the law and the evidence. The rule to be applied herein is that a mere illegal taking or wrongful assuming of right to personal property constitutes conversion and that no further step is necessary to perfect the right of action therefor, First National Bank v. Melton Homes, 156 Okla. 63, 9 P.2d 703; and the fact that owner was indebted to wrongdoer is no defense, Caldwell v. Carpenter, 109 Okla. 63, 234 P. 767. The record discloses that plaintiff was a feeble old veteran of the Spanish American War who was afflicted with a disability known as Parkinson's Syndrome or Palsy, the aftermath of sleeping sickness.
Where an action at law is tried by the court without a jury, the appellate court is precluded from weighing the evidence for the purpose of determining whether or not the court's findings were justified thereby, unless there is no evidence whatever to support the findings. First National Bank v. Melton Holmes, 156 Okla. 63, 9 P.2d 703. Appeal from District Court, Choctaw County; George T. Arnett, Judge.
"We are of the opinion that the trial court correctly instructed the jury that plaintiff, as a matter of law, was guilty of converting the tangible personal property located in Anchor Tap Room at the time he took possession of said property without the knowledge or consent of defendant." "In Sisler v. Smith, Okla., 267 P.2d 1081, it is pointed out that the `mere illegal taking or wrongful assuming of right to personal property constitutes conversion and that no further step is necessary to perfect the right of action therefor.' First National Bank of Pocasset v. Melton Holmes, 156 Okla. 63, 9 P.2d 703; and the fact that owner was indebted to wrongdoer is no defense, Caldwell v. Carpenter, 109 Okla. 63, 234 P. 767. "At the time plaintiff took possession of the tangible property located in Anchor Tap Room, defendant was indebted to the bank and not to plaintiff, and the bank and not plaintiff owned the mortgage given to secure the note when plaintiff had endorsed with recourse to the bank.
We are of the opinion that the trial court correctly instructed the jury that plaintiff, as a matter of law, was guilty of converting the tangible personal property located in Anchor Tap Room at the time he took possession of said property without the knowledge or consent of defendant. In Sisler v. Smith, Okla., 267 P.2d 1081, it is pointed out that the "mere illegal taking or wrongful assuming of right to personal property constitutes conversion and that no further step is necessary to perfect the right of action therefor, First National Bank of Pocasset v. Melton Holmes, 156 Okla. 63, 9 P.2d 703; and the fact that owner was indebted to wrongdoer is no defense, Caldwell v. Carpenter, 109 Okla. 63, 234 P. 767." At the time plaintiff took possession of the tangible property located in Anchor Tap Room, defendant was indebted to the bank and not to plaintiff, and the bank and not plaintiff owned the mortgage given to secure the note when plaintiff had endorsed with recourse to the bank.
26 R. C. L. 1098. Plaintiff contends that when Aust notified the insurance company of the loss, and the insurance company, acting through the adjustment company, had the wrecked automobile removed to the shop for repairs, Aust thus indirectly exercised wrongful dominion over the car, and cites First Nat. Bank of Pocasset v. Melton Holmes, 156 Okla. 63, 9 P.2d 703, to the effect that the mere wrongful assuming of a right to personal property constitutes conversion. But in the present case plaintiff willingly consented to the removal of the automobile to the shop, and from the evidence no possession thereof was taken by the adjuster, but his recommendations as to its removal were followed by plaintiff.
The finding of the jury was in favor of the defendant. Conversion is defined in the case of First National Bank of Pocassett v. Melton Holmes, 156 Okla. 63, 9 P.2d 703, as follows: " 'Conversion' is the unlawful and wrongful exercise of dominion, ownership, or control by one person over the property of another, to the exclusion of the exercise of the same rights by the owner, either permanently or for an indefinite time.
Harn v. Interstate Bldg, Loan Co., 77 Okla. 265, 188 P. 343. It remains for us to determine whether or not the court's findings and judgment are supported by competent evidence, See First National Bank of Pocasset v. Melton Holmes, 156 Okla. 63, 9 P.2d 703, wherein we held in paragraph 5 of the syllabus as follows: "Where an action at law is tried by the court without a Jury, the appellate court is precluded from weighing the evidence for the purpose of determining whether or not the court's findings were justified thereby, unless there was no evidence whatever to support the findings."
Counsel for defendant in error argues that the case was tried before the court, all evidence was presented, and the case having gone to trial on its merits, the decision should be final. He quotes from First Nat. Bank v. Melton Holmes, 156 Okla. 63, 9 P.2d 703, to the effect that, where an action is tried to a court without a jury, the appellate court is precluded from weighing the evidence for the purpose of determining whether the court's findings were justified unless there is no evidence whatever to support the findings. He then quotes from Baldwin Baker v. Saunders-Gibson Co., 148 Okla. 290, 298 P. 600, that where a jury is waived and a cause tried to the court, the judgment of the court must be given the same force as the verdict of a properly instructed jury and, if there is any competent evidence reasonably tending to support the judgment of a trial court, same will not be disturbed on appeal.
It is any distinct act of dominion wrongfully exerted over another's personal property in denial of, or inconsistent with, his rights therein. First Nat. Bank v. Melton Holmes, 156 Okla. 63, 9 P.2d 703; Wilson Co. v. Russell, 144 Okla. 284, 290 P. 1106; George W. Brown Sons State Bank v. Polen, 132 Okla. 121, 270 P. 9. The undisputed evidence in the cause is that all other property involved in the joint adventure had been disposed of and the proceeds amicably distributed prior to the trial of the cause, except a small quantity of pipe in Texas which a purchaser from Fischer had refused.
"Where cause is tried to the court without a jury the finding of the trial court will not be reversed on appeal when there is competent evidence reasonably tending to support such finding." See, also, Caldwell v. Caldwell, 154 Okla. 120, 8 P.2d 66; Yaholar v. Autry, 156 Okla. 257, 10 P.2d 676; First Nat. Bank v. Melton Holmes, 156 Okla. 63, 9 P.2d 703; Turk Bros. v. Brewer, 157 Okla. 200, 11 P.2d 926; Missouri, K. O. Coach Lines v. Benton, 157 Okla. 10, 10 P.2d 451; Alco Finance Co. v. Barnes, 158 Okla. 222, 13 P.2d 203. It is also noted that from the time William Howard and his family took possession of the property in question no claim of title or right to possession was asserted by Louisa J. Simmons for a period of seven years.