Opinion
1 Div. 930.
April 21, 1931.
Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.
Action for conversion by C. F. Dupont against the Wingfield Motor Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Gordon, Edington Leigh, of Mobile, for appellant.
Appellant had a common-law, as well as a statutory, lien upon the property, and had a right to retain possession of the same. Alexander v. Mobile Auto Co., 200 Ala. 587, 76 So. 944. It was entitled to show that the title to the property was in another, and therefore immediate right of possession necessary to conversion did not lie in appellee. Stafsky v. Southern R. Co., 143 Ala. 274, 39 So. 132; Behr v. Gerson, 95 Ala. 441, 11 So. 115; Draper v. Walker, 98 Ala. 313, 13 So. 595. Appellee was not entitled to maintain conversion on the facts in this case, but, if any remedy lies, it would be in detinue. Stafsky v. Southern R. Co., supra; Pollard v. Pollard, 207 Ala. 270, 92 So. 488; Deholl v. Pim, 219 Ala. 372, 122 So. 320.
Inge, Stallworth Inge, of Mobile, for appellee.
Where plaintiff is in possession of personal property, such possession, without regard to any question of ownership or title, is sufficient to maintain the action of trover against mere trespassers or wrongdoers. Meyer v. Hearst, 75 Ala. 390; Donnell v. Thompson, 13 Ala. 440; Williams v. Crum, 27 Ala. 468; 2 Greenleaf Evi. (14th Ed.) § 637; Huddleston v. Huey, 73 Ala. 215; Patterson v. Kicker, 72 Ala. 406; Draper v. Walker, 98 Ala. 310, 13 So. 595; Brown v. Beason, 24 Ala. 466. The naked possession of goods, with claim of right, is sufficient evidence of title against one who shows no better right; and defendant could not defeat the action by proving title in a stranger without connecting himself therewith. Gafford v. Stevens, 51 Ala. 434; Miller v. Jones' Adm'r, 26 Ala. 247; Folmar v. Copeland, 57 Ala. 588; Cook v. Patterson, 35 Ala. 102. If one exercises dominion over the property of another, in exclusion or defiance of such other's rights, there is a conversion. Conner v. Allen, 33 Ala. 515; Bolling v. Kirby, 90 Ala. 215, 7 So. 914, 24 Am. St. Rep. 789; Freeman v. Scurlock, 27 Ala. 407; Glaze v. McMillion, 7 Port. (Ala.) 279; Gray v. Crocheron, 8 Port. (Ala.) 191; Thweat v. Stamps, 67 Ala. 96; Cent. R. Co. v. Lampley, 76 Ala. 357, 52 Am. Rep. 334; Butler v. Jones, 80 Ala. 456, 2 So. 300; Compton v. Sims, 209 Ala. 287, 96 So. 185; Meader v. Evans, 188 Ala. 229, 66 So. 446.
So far as this case is concerned, the facts may be stated as follows: Plaintiff was the owner of an Essex automobile, the estimated value of which was from $125 to $300. With his consent his wife took the car and with her children started to Pascagoula. Before getting to Mobile plaintiff's wife with her baby got out of the car and into a closed car, leaving the Essex with her son and Peter Dobbs, an employee of defendant. Before the Essex got to Mobile it broke down, of which fact plaintiff's wife was notified, and she, with the consent of plaintiff, arranged with defendant to have the car repaired, which she was told would be about $5. Plaintiff's wife insisted on getting the car that same night, but upon being told it could not be repaired until morning she consented to wait, spent the night in Mobile, and the next morning she called for the car, offering to pay the repair bill. Defendant refused to deliver the car unless he was paid $50, $5 of which was for repairs to the Essex car and $45, which defendant claimed as damages for some real or fancied wrong done to him by a sister of plaintiff's wife, in which defendant claimed plaintiff's wife had participated. Possession of the car was demanded and offer made to pay the repair bill. Possession was refused unless defendant was paid $50, which was $45 in excess of the repair bill.
Defendant offered to prove that plaintiff bought the car from one Lancaster and had given notes for the purchase money, wherein Lancaster had retained title to the car, that the notes were in default, and that Lancaster had declared the notes forfeited.
Under the facts in this case the appellant had a lien on plaintiff's car for the repairs made by it at the request of plaintiff's wife. Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944.
The lien, however, extended only to the amount of the repairs (in this case $5), and when defendant assumed control and dominion over the car and refused to deliver it to plaintiff's wife unless and until it was paid an additional $45, for which it had no lien and to which it was not entitled from plaintiff, the conversion of plaintiff's Essex car was complete. Wilson v. Lewis, 11 Ala. App. 261, 65 So. 919; Stafsky v. Southern R. Co., 143 Ala. 272, 39 So. 132; Conner Johnson v. Allen Reynolds, 33 Ala. 515.
In this case the plaintiff was in possession of the Essex car in question claiming to be the owner; defendant obtained possession from plaintiff for the purpose of repairing the same. Such possession and title was sufficient to entitle plaintiff to recover in this action as against defendant who, by refusing to deliver the car, became a trespasser or wrongdoer. Pinckard v. Cassels, 195 Ala. 353, 70 So. 153; Cook v. Patterson, 35 Ala. 102.
The defendant claims error in that the trial court refused to permit it to introduce evidence tending to prove title to the car in one Lancaster from whom plaintiff had purchased the car and given notes retaining title in the seller. Prior actual possession is sufficient to sustain an action of trover against one who afterwards comes into possession without title or who receives possession from one who acquired it without title, unless defendant can connect his possession with a superior outstanding title in another. The transaction between Lancaster and plaintiff was res inter alios acta. Cook v. Patterson, 35 Ala. 102; Behr v. Gerson, 95 Ala. 438, 11 So. 115. Cases cited by appellant on this point are only applicable where plaintiff relies on title and not prior possession.
Under the facts in this case the defendant was guilty of a conversion of plaintiff's Essex car, and the trial court committed no error in so instructing the jury. Dent v. Chiles, 5 Stew. P. 383, 26 Am. Dec. 350.
We find no error in the several rulings of the court nor in the record, and the judgment is affirmed.
Affirmed.