
    FALL TERM, 1915
    J. H. CLARK v. HENRY WHITEHURST.
    (Filed 15 September, 1915.)
    1. Appeal and Error — Questions Keviewable — Nonsuit—Evidence.
    On appeal from a nonsuit tbe evidence must be taken as true.
    2. Trover and Conversion — Acts Constituting — Liability.
    An occasional employee, who took the employer’s mule at night and drove it off without the knowledge or consent of the employer, was guilty of a tortious conversion, and an act indictable under Revisal 1905, sec. 3509; and where the mule died in his possession he was liable for its value, at least in the absence of any evidence in support of his claim that the death was accidental.
    Appeal by plaintiff from Justice J., at February Term, 1915, of Beaufort.
    From a judgment of nonsuit, plaintiff appeals.
    
      Ward & Grimes for plaintiff.
    
    
      No counsel contra.
    
   Clark, C. J.

Tbe complaint alleges tbat tbe defendant wrongfully took from tbe stables of tbe plaintiff a bay mule, tbe property of tbe plaintiff, without bis knowledge or consent, and drove him a distance unknown to tbe plaintiff, and so cruelly mistreated and abused said mule tbat be died, and this action is to recover tbe sum of $200, alleged to be tbe value of tbe mule.

At tbe trial tbe evidence for the plaintiff was that tbe defendant, who was in the employment of tbe plaintiff as an occasional laborer, took tbe mule in question from plaintiff’s stables at night, and drove her off without bis knowledge or consent, and that while in bis possession tbe mule died; that tbe mule was worth $200; and be asks damages in that amount. There was evidence that tbe defendant was cruel to teams, but no direct evidence that tbe death of tbe mule bad been caused by overdriving or bad treatment, and doubtless on that ground tbe court directed a nonsuit. In this there was error.

In Bethea v. McLennon, 23 N. C., 531, it is said: “There is a marked distinction between tbe action of detinue and that of trover, though, in many cases, it is at tbe option of tbe plaintiff to bring which be will. Tbe former asserts a continuing property in tbe plaintiff, and alleges tbe wrong to consist wholly in tbe withholding tbe possession of bis goods from him by bis bailee; while tbe latter affirms that, although they were once tbe proper goods of tbe plaintiff, they have been made tbe goods of tbe defendant, and complains of tbe injury caused by this conversion. If, after being thus converted, tbe goods perish by unavoidable accident, tbe loss falls upon tbe defendant, who has made them bis; and this misfortune shall not exonerate him from answering for tbe prior wrongful conversion.”

The defendant in this case was not a bailee, and this was a tortious conversion under circumstances which made tbe defendant indictable, if tbe evidence is true; and it must be taken as true upon a nonsuit. Revisal, sec. 3509; S. v. Darden, 117 N. C., 697. Besides, though tbe defendant so averred in bis answer, be has offered no evidence that tbe death of tbe mule was caused by accident, which at most was a matter of defense and in bis knowledge. Tbe defendant, having taken tbe mule wrongfully and not having returned him, is liable for bis value. In Shipper v. Hargrove, 1 N. C., 27, it was held that where one bad wrongfully taken a slave, who died pending tbe action to recover her, be was liable for her value. It is true that this case was criticised in Bethea v. McLennon, supra, but solely upon tbe ground that tbe action was brought in detinue, and not in trover, as in tbe present case. These refinements as to tbe distinction of tbe forms of action have now long since disappeared. But if they bad not, tbe present is an action not for tbe specific property as in detinue, but for damages for tbe conversion and for tbe failure to return.

In Taylor v. Welsh, 138 Ill. App., 190, it was held that even in an action’to recover the animal, if it proved to be in a dying condition when returned, tbe defendant was liable for tbe loss. In Sedgwick Damages, sec. 536a, it is said that in replevin, if tbe loss to tbe property by death or otherwise occurs through tbe default of tbe defendant, “be is of course responsible. There seems no reason why the same rule should not apply to the loss of other property by inevitable accident; it has been held in such case that the possessor must answer for its value, though the loss happened without his fault,” citing Jennings v. Sparkman, 48 Mo. App., 246; Suppiger v. Gruaz, 137 Ill., 216, 27 N. E., 22; Lumber Co. v. Blanks, 133 Fed., 479, 66 C. C. A., 353, 69 L. R. A., 283.

The defendant was in possession of the animal wrongfully, even criminally, if this evidence is to be believed. The animal died while in his possession. He has failed to restore it to the owner in good condition, or show any excuse, and is liable for its value. This case differs entirely from Sawyer v. Wilkinson, 166 N. C., 497, where a mule was hired to the defendant, to be returned in good condition, and the mule was burned to death when a fire destroyed the defendant’s stables without any negligence on his part. In that case it was held that the bailee, being in lawful possession of the mule, was responsible only for ordinary care in its preservation and protection, and was not responsible for its destruction and consequent failure to return it, in the absence of any negligence on his part. Though this decision is in accordance with the weight of authority, there are many cases which hold that even where the party holds under a contract of bailment, if there is a special contract to return the horse in good condition, and the horse dies in the bailee’s possession, though without fault on his part, ‘he is liable for its value as insurer. Grady v. Schweinler, 16 N. D., 452, 125 Am. St., 676, 15 Anno. Cases, 161, and cases there cited.

In Doolittle v. Shaw, 92 Iowa, 348, 26 L. R. A., 370, 54 Am. St., 562, it is held that even in a contract of bailment, if the bailee acts in such way,, in violation of the terms of the contract, as to indicate an appropriation of the property temporarily, or permanently, to his own use, or exercises acts of ownership over it inconsistent with the owner’s rights, he is liable for its value if it dies or is injured. Scott v. Elliott, 63 N. C., 215, is largely taken up with a discussion of the distinction between detinue, replevin, and trover, matters which have' happily ceased to be of any interest; but it holds, which is relevant to this case, that where the action is brought for damages for wrongful conversion the measure of damages is the value of the property at the time of the taking.

The judgment of nonsuit is

Reversed.  