On Rehearing. This Court and the Court of Appeals fully treated the question of the right of one in possession, and the character of the *Page 133 possession necessary to sustain an action against a wrongdoer for injury to or conversion of personal property in Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339; Id.,17 Ala. App. 34, 81 So. 342, where the authorities were fully reviewed, and the statute upon which appellant relies was construed and applied. That case is cited in original opinion in this case, and to our mind is a sufficient answer to the appellant's application for rehearing.
The only Alabama case not referred to in the Goodwyn Case is Forbes Carloss v. Plummer, 198 Ala. 162, 73 So. 451. The opinion in that case refers to the facts as disclosed in the opinion on a former appeal (Hardison v. Plummer, 152 Ala. 619,620, 44 So. 591), to wit:
"The plaintiff, Theodore Plummer, purchased the property at said sale [mortgage foreclosure], went into possession, and then put it in charge of Hardison, as his agent, and who subsequently turned it over to the other defendants, Forbes Carlos."
On the last appeal it was observed (page 453 of 73 So.):
"Moreover, as we have before said, it was ruled on the former appeal (and we see no reason to depart from that holding) that this plaintiff had such possession, title, or right as would support trover, if the defendants really converted the property as alleged and as the proof tended to show. If it could be contended or found that he purchased as an agent or an officer of the lumber company, and not as an individual, still he acquired such rights as would support trover against one who subsequently converted the property. Such case is different from one involving the possession or custody of a mere overseer or caretaker, as is spoken of in the case of Heygood v. State,59 Ala. 49. The correct rule as to the maintaining of trespass, trover, etc., against wrongdoers, by agents or bailees in their own names, is stated in the opinion in the case of Montgomery G. L. Co. v. Montgomery E. Ry. Co., 86 Ala. 372, 5 So. 735."
In the case there cited the opinion states:
"The plaintiff had them in possession as bailee for hire, and owned such a special property in the cars as to authorize an action in its name against a third person, for negligently or tortiously injuring them." Montgomery Gas Light Co. v. Montgomery E. Ry. Co., 86 Ala. 372, 382, 5 So. 735, 738.
In Crescent News Hotel Co. v. Hines, 7 Ala. App. 609,61 So. 9, the property was delivered by the plaintiff to the defendant under a contract of bailment and the court observed (page 11):
"The contention is not made, and we do not think that it could successfully be made, that the state's ownership of the rifles, of which the plaintiff was the lawful custodian,rendered invalid the contract of bailment entered into by thedefendant with the plaintiff." (Italics supplied.)
In Hara v. Fuller, 7 Ala. 717, the action was by a bailee against a wrongdoer.
Here Arledge was the county's "road supervisor" — overseer, and property in his custody was in the county's possession as a matter of law. Thompson v. Chilton County et al., post, p. 142,181 So. 701.
The application is overruled.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.