Opinion
No. 28164.
June 19, 1951.
APPEAL FROM THE CIRCUIT COURT, PIKE COUNTY, RICHARD CREECH, J.
J. H. Haley, Bowling Green, for appellant.
Long McIlroy, Bowling Green, for respondent.
This is an action in replevin brought by Nettie Exman, plaintiff, against Bill Wommack, defendant, to recover the possession of six cows and one calf claimed by plaintiff as her property and alleged to be wrongfully detained by the defendant. In his answer defendant claimed a half interest in the property and prayed judgment for possession of said property, or the value thereof, with damages in the sum of $300. Defendant filed also a counterclaim in two counts. Count one alleged a conversion by plaintiff of said property and prayed damages in the sum of $1150. Count two of defendant's counterclaim was for damages for the malicious prosecution of the cause stated in plaintiff's petition and prayed damages in the sum of $1150 actual and $1000 punitive damages. The case was tried to the court, a jury having been waived by the parties. The court found for plaintiff on plaintiff's cause of action, and for plaintiff on defendant's counterclaim. The court found that the evidence did not sustain plaintiff's prayer for damages, and no damages were allowed plaintiff by the court in its judgment — possession only being awarded plaintiff. From this judgment, defendant appealed.
The evidence showed that plaintiff owned a farm in Pike County and that defendant lived on a farm located a mile and a half from Mrs. Exman's farm. In 1942, plaintiff, who then owned about ten head of cattle, made an agreement with defendant that he was to feed and care for these cattle. Plaintiff testified:
"Q. I will ask you in 1942 did you make some agreement with Bill Wommack for him to look after the cattle? A. I told him if he would take care of the cattle he could have half of the calves, but the old cattle stayed mine and my sister's.
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"Q. Miss Nettie, did Wommack work under that agreement for several years? A. Yes. He would take care of the cattle and we would ship out the calves and he would get half of them."
The cattle were never off the Exman farm. Defendant would come from his farm to feed and look after the cattle. It was the practice to sell the calves each year at weaning time. Defendant would attend to selling the calves and would deposit plaintiff's share of the proceeds in the bank, and deliver to plaintiff the deposit slip.
About three years before this suit was filed plaintiff moved from the farm to the home of her neice, Mrs. Beulah Shephard, who lived on a farm near the Exman farm. When Mrs. Exman moved to her niece's home the cows were left on the Exman farm, where defendant continued to look after and feed them. In November, 1949, plaintiff decided to end the agreement she had with defendant and, on one of defendant's visits to her, informed him of that fact. There were six cows and one calf in the herd at that time. Plaintiff's testimony with reference to her conversation with defendant regarding the termination of their agreement is as follows:
"Q. Miss Nettie, did you tell Wommack that you wanted to take possession of your cattle? A. I told him I was going to take them.
"Q. When did you tell him that? A. It was sometime when he was over here.
"Q. In the fall of 1949? A. I guess it was.
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"Q. Now, Miss Nettie, as I understand from you, when you told him you wanted to take the cows he refused to let you take them? A. He said, `Let them alone.' I don't know why, but it's mean. It's the meanest thing I've heard of. I know I wouldn't done it.
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"Q. He was tending them and taking care of them at the time you brought this suit? A. They were on grass and the fences were good. * * * He hadn't been feeding them — they were running on the grass when Wheatley (Sheriff) came and got them.
"Q. How long had it been since he had been tending to them before you filed this suit? A. I couldn't say.
"Q. Had he been tending to them a month before? A. He never fed them anything at all.
"Q. Since when? A. All summer and all fall.
"Q. He just wasn't doing anything to them and they were on your land there? A. I had good fences. I kept up my fences and had plenty of water. I paid him whenever he did anything.
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"Q. And all the stock were on the pasture land at the time you brought the suit? A. That's right. * * * They were on grass."
Mrs. Beulah Shephard was present at the November meeting between the parties. She testified:
"She (plaintiff) told him (defendant) she was going to take her cows and bring them over to my place.
"Q. And what did Wommack say? A. He said: `Leave them there until the first of March.'
"Q. And what did Mrs. Exman say after that? A. She said she wasn't going to do it; that she had made up her mind and she was going to bring them over to my place.
"Q. What reply did Wommack make? A. He said, `We will see.'"
Dorothy Gray, a daughter of Mrs. Beulah Shephard, was also present on the occasion in question. She testified that plaintiff "wanted to bring the cattle over to Mamma's and he said, `Leave them there, don't move them.' * * * She said she was going to bring them over anyway. I don't remember just what words she used."
Defendant admitted that the cattle taken by the sheriff under the replevin writ were cattle that belonged to plaintiff; that he had no interest in them, and was making no claim to them. He further testified that in November, 1949, shortly before the replevin suit was filed, Mrs. Exman told him she wanted to terminate the agreement she had with him and wanted him to turn the cattle back to her. He testified: "I told her the cattle was over at her place and just to leave them over there."
Appellant contends that the trial court erred in finding that the defendant "had sufficient control" over the cattle to lay the basis of a replevin suit.
In order to maintain replevin it is essential that defendant have either actual or constructive possession of the property sued for at the time of the filing of the suit. Penn v. Brashear, 65 Mo.App. 24; Feder v. Abrahams, 28 Mo.App. 454; Rogers v. Davis, 21 Mo.App. 150; Morrow v. Pryor, 125 Mo.App. 344, 102 S.W. 582; Sipe v. Groce, Mo.App., 1 S.W.2d 1034; Leavel v. Johnston, 209 Mo.App. 197, 232 S.W. 1064; Leisey Brewing Co. v. Cline, Mo.App., 211 S.W. 689; Martin v. Barnett, 158 Mo.App. 375, 138 S.W. 538; Fergusson v. Comfort, 194 Mo.App. 423, 184 S.W. 1192; Emory v. Arnold, 184 Mo.App. 99, 168 S.W. 320; Wells on Replevin, sec. 134; Shinn on Replevin, sec. 40.
In Shinn on Replevin, sec. 40, page 25, it is stated: "It is a general principle of the common law of Replevin that the action cannot be maintained against one who is not, at the time the action is begun, in the possession of the chattels sought to be recovered. Replevin being an action to obtain possession it necessarily follows that the defendant must have possession of the thing sought to be obtained by the plaintiff. This is manifestly true because a defendant not in possession of an article could not be adjudged to make return of that article. Therefore if the defendant has not the actual or constructive possession and control of the chattel sought to be recovered the action of Replevin cannot be maintained."
It is also a well established principle that where property is in the possession of the plaintiff himself he cannot bring replevin against another for it. Shinn on Replevin, sec. 39, page 24.
It is clear from the evidence adduced that defendant did not have either actual or constructive possession of the cows in question at the time this suit was brought, but that they were at said time on the plaintiff's land and in plaintiff's possession. The status of defendant was that of an employee hired to feed and attend to the cows. Defendant did not have legal possession of the cattle and, in fact, did not assume any control hostile to the rights of plaintiff. It does not appear that defendant made an effort to prevent plaintiff from removing her cattle from her farm to the farm of her sister, other than to advise her "to leave them alone," when plaintiff informed him of her desire to transfer said cattle to the farm of her sister.
After considering the evidence in this case, it is our opinion that the judgment should be reversed. It is so ordered.
McCULLEN and BENNICK, JJ., concur.