Appeal from the Circuit Court of Peoria County; the Hon. J.E.
RICHARDS, Judge, presiding. Reversed and judgment here.
This was an action of trover brought in the Circuit Court of Peoria County by the appellant, Associates Discount Corporation, against Harold D. Walker, d/b/a Walker's Used Cars. The facts were stipulated by the parties and heard by the Court without a jury.
On June 3, 1957, an Illinois Certificate of Title to a Cadillac automobile was issued to Gene Smith of Champaign, Illinois, by the Illinois Secretary of State. Smith, a used car dealer, acquired the automobile by purchase from J.C. Campbell, a resident of Michigan. Smith sold the automobile to an automobile dealer in Indianapolis named Concannon. On August 8, 1957, Concannon sold the automobile to a man by the name of Byers at Indianapolis. Byers paid $850 in cash and executed a conditional sales contract and note for the balance of $3,000. The conditional sales contract, which was attached to plaintiff's Complaint as an exhibit, was designated "Illinois Conditional Sales Contract" and was prepared on a form furnished by the plaintiff financing company. The conditional sales contract provides for the usual retention of title in the vendor, the assignment of the contract to the plaintiff financing company, and that Byers, a resident of Decatur, Illinois, should make the payments provided therein at the plaintiff's office in Chicago, Illinois. According to the contract the automobile should not be sold, encumbered or removed from Macon County where the vendee then resided without the written consent of the owner.
On August 8, 1957, Concannon assigned the conditional sales contract and the note of Byers to the plaintiff. At the same time, the seller delivered possession of the automobile and assigned the certificate of title to Byers. The lien of the conditional sales contract was noted thereon in favor of the plaintiff.
It was further stipulated by the parties that some time later Byers obtained a certificate of title to the automobile from the State of Mississippi which failed to show any lien. Thereafter, Byers sold the automobile at an auction in Moline, Illinois, and the defendant, Harold D. Walker, a used car dealer from Peoria, Illinois, d/b/a Walker's Used Cars, purchased the automobile. The defendant removed the automobile from Moline to his lot in Peoria, secured an Illinois certificate of title and on August 15, 1957, sold the auto to an automobile dealer from Tennessee.
It was further stipulated by the parties that the defendant was at the time of the sale of the automobile on August 15, 1957, without any knowledge of the foregoing facts and was a bona fide purchaser for value. Some time later, the plaintiff learned of the facts and through its attorney made a demand on defendant in June of 1959 for the value of the automobile. The defendant refused to honor the demand and the plaintiff instituted this suit in trover. Among the allegations set forth in the plaintiff's complaint was the allegation that the defendant, in selling the automobile to the Tennessee dealer, "tortiously and wrongfully converted the same to his own use."
Although nothing is shown by the record as to which State issued the title certificate which plaintiff assigned to Byers, presumably this was the same Illinois certificate of title issued to Smith.
The trial Court found for the defendant and the appellant brings this appeal.
Plaintiff assigns two errors: first, that the Court erred in holding that malice or wrongful intent is necessary to establish a conversion and, second, that the Court should have entered judgment for the plaintiff for $3,100 and interest from the date of the judgment, the $3,100 being the sale price of the automobile when sold by the defendant to the Tennessee dealer.
Counsel for both parties submit that the sole question to be decided on review is whether the facts set forth constitute an actionable conversion. Plaintiff puts the question in this manner, "Did Harold Walker convert the 1956 automobile?" Defendant states the question, "Did the defendant, Harold D. Walker, a bona fide purchaser for value without notice in Illinois `tortiously and wrongfully' convert the automobile in which the plaintiff had a property interest under a Conditional Sales Contract which was properly recorded in Indiana?"
From the foregoing it may be seen that the sole issue presented by this appeal is whether culpability or conscious wrongdoing is a necessary element in an action of trover. Neither party cites any Illinois authority on the point.
An examination of the history and development of the common law action of trover discloses that it was based upon the legal fiction that the plaintiff lawfully possessed a certain chattel, casually lost the same and that it came into the possession of the defendant and the defendant has refused to return it and converted it to his own use and, therefore, should be required to pay the plaintiff its value. The defendant was not at liberty to deny the legal fiction. Puterbaugh's Pleading and Practice, Common Law, Eighth Edition, Page 293, et seq. and cases therein cited.
Malice, culpability or conscious wrongdoing is not a necessary element to establish a conversion for which trover will lie. All that is required is the exercise upon or control over the chattel inconsistent with the plaintiff's right of possession. Gordon v. Krieger, 251 Ill. App. 166; Mead v. Thompson, 78 Ill. 62; Illinois Cent. R. Co. v. Parks, 54 Ill. 294; and Gibbs v. Jones, 46 Ill. 319.
There are numerous references in the reported cases where the Courts refer to the conversion as being "tortious, wrongful" and other expressions connoting culpability. However, an examination of these cases shows the Courts were dealing with the question of the necessity of the demand (Puterbaugh's Pleading and Practice, Common Law, Eighth Edition, Page 300), or the question of punitive damages. Where the defendant is guilty of malice or conscious wrongdoing this may be specially pleaded and proved as an aggravation warranting punitive damages. Allen v. Gable, 180 Ill. App. 472; Mansur-Tebbetts Implement Co. v. Smith, 65 Ill. App. 319; Tripp v. Grouner, 60 Ill. 474. It is apparent from these authorities that there was a "tortious and wrongful conversion" by the ...