This is an action on a case by appellee against appellant to recover damages for an injury to a motorcycle, alleged to have resulted from the negligence of the defendant's servant or agent in allowing a locomotive to run upon the motorcycle while the plaintiff was attempting to cross defendant's tracks at a public road crossing, the plaintiff having abandoned the motorcycle in extricating his person from the peril of the situation thus produced. There was evidence tending to sustain plaintiff's theory that the defendant's engineer was guilty of negligence after the discovery of the perilous position of the motorcycle on the track, which necessitated a submission to the jury of the issues of negligence vel non. The question presented is whether the plaintiff had such interest in the motorcycle as entitled him to sue and recover damages thus occasioned. It appears without dispute that the motorcycle belonged to one Faulkner, and that the plaintiff was in the employ of Faulkner as a collector; that plaintiff had the motorcycle in his possession, and was using it in connection with his duties, under an agreement with the owner that the plaintiff would be responsible for all damage to it while it was in his possession, and have such injury repaired. The evidence further showed that plaintiff procured repairs to be made on the machine after it was damaged by the defendant, and paid the cost of such repairs, which was shown to be reasonable. These facts do not show or tend to show that Faulkner was under any duty to furnish the motorcycle to the plaintiff as an incident to his employment, but tends to rebut said inference, so we do not think that the plaintiff's custody, under this arrangement, was that of a servant, which would operate to refer the possession to the legal title, but that the relation created was *Page 600 that of bailor and bailee, and under all the authorities this character of possession entitled the plaintiff to sue for and recover such damages as he actually sustained. In one of the early cases in this state, it was said: "This is an ancient doctrine of common law: 'Every person who is answerable to another for a personal chattel in his possession has such special property in the chattel as enables him to maintain an action of trespass for the taking or injury thereof by a stranger.' * * * And a recovery by either the bailee or owner would oust the other of his right of action." Hare v. Fuller,7 Ala. 717. The doctrine there announced has been reaffirmed in many cases since. Cox v. Easley, 11 Ala. 369; Kelly v. McCaw,29 Ala. 232; Stetson v. Goldsmith, 30 Ala. 606; Cook v. Patterson, 35 Ala. 105; McGill v. Monette, 37 Ala. 49; Miller v. Clay, 57 Ala. 164; Heygood v. State, 59 Ala. 61; A. G. S. v. Jones, 71 Ala. 493; Shahan v. Herzberg, 73 Ala. 64; Wilkinson v. Searcy, 76 Ala. 180; Montgomery Gaslight Co. v. M. E. R. R. Co., 86 Ala. 382, 5 So. 735; Crescent News Hotel Co. v. Hines, 7 Ala. App. 609, 61 So. 9.
There is another phase of the question, however, that is more difficult. The complaint does not disclose the relation of the plaintiff to the motorcycle shown by the evidence, but merely avers that it was in his "charge or possession," and the demurrer questions the sufficiency of this averment as showing plaintiff's right to maintain an action for injury to or destruction of the motorcycle. The sufficiency of the averment is rested upon the provisions of section 2462 of the Code: "Mere possession of a chattel, if without title, or wrongfully, will give a right of action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession." This section is found in article 4, chapter 48, of the Code, and by reference to the original manuscript, as prepared and submitted by the Code Commissioners, embraced sections 1879 to 1884, inclusive, these numbers having been changed in the rearrangement by the Code Committee, omitting from this article section 1881 as it appeared in the original manuscript. The report of the Code Commissioners contains this recital: "This article is all new matter, and merely defines rights and provides remedies as to matters specified in each section, pertaining to personal property. Each section is merely declaratory, and confers no new right, except section 1881, which authorizes an alternative verdict in trover, and dispenses with proof of conversion where the defendant was in possession." Mayfield's Report as Code Commissioner 1907, p. 57.
There seems to have been some conflict of opinion even in this state as to the character of possession of a chattel which confers on the possessor a right of action at common law against one who wrongfully converts or injures such chattel. Some of the cases hold that the possession must be such as at least evidences a special property in the chattel as distinguished from a mere gratuitous possession, without contractual responsibility to the owner. Heywood v. State, supra; Shahan v. Herzberg, supra; Philips v. Harriss, 3 J. J. Marsh (Ky.) 122, 19 Am. Dec. 166; 3 R. C. L. p. 128, §§ 50, 51; Mitchell v. Ga. Altnona R. R. Co., 111 Ga. 760, 36 S.E. 971, 51 L.R.A. 622; Lockhart v. Western Atl. R. R. Co.,73 Ga. 472, 54 Am. Rep. 883. While others hold that the mere possession is sufficient against such wrongdoer. Cook v. Patterson, 35 Ala. 102; Blackman v. Lehman, 63 Ala. 556, 35 Am.Rep. 57; A. G. S. v. Jones, supra; State v. Pensacola St. Andrew Gulf Steamship Co., 75 So. 892;1 Dicey on Parties to Action (2d Ed.) p. 376, § 354. The authority last cited states the rule thus: "A person who has the actual possession of goods has a right to possess them against any one who cannot show a better title, or, what is the same thing, who cannot show that in interfering with possession of the goods he is acting under the authority of some one who has a better title than the possessor. Rights of action of this sort are given in respect of the immediate and present violation of the possession of the plaintiff, independently of his right of property, and are an extension of the protection which the law throws around his person" — citing as supporting the text Rogers v. Spence, 13 M. E. W. 571-581.
The authorities, however, agree that the possession of a servant, under the immediate control and dominion of the master, is in contemplation of law the possession of the master, and does not confer on the servant a right of action for the destruction or injury of the property by a wrongdoer. Heygood v. State, supra; A. G. S. v. Jones, supra; Dicey on Parties to Actions, p. 379; Adams v. State, 13 Ala. App. 330,69 So. 357; Thomas v. State, 97 Ala. 3, 12 So. 409; Aldridge v. State, 88 Ala. 113, 7 So. 48, 16 Am. St. Rep. 23.
The statute, as appears from the report of the Code commissioner, is merely declaratory of the common law, and does not confer or create a new right of action. Its manifest purpose was to settle the seeming conflict evidenced by the authority in this state as to the character of possession of a chattel essential to confer a right of action for its loss or injury at the hands of a wrongdoer, and under this statute, "mere possession," though "wrongfully" and "without title," "gives a right of action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession." To constitute this character of possession, however, the possessor must have absolute dominion over and control of the property for the time being. In legal contemplation, possession indeed may be considered as primative proof of title, and the natural foundation of right. Linscott v. Trask, 35 Me. 150. The possessor of personal property is prima facie the owner, and the presumption of ownership arising from it is not disputable by a trespasser who does not connect himself with the true title. A. G. S. v. Jones, supra. "While, however, possession will maintain or defeat an action against a wrongdoer, and is, to that extent, evidence of title, it is not title, nor the equivalent of title. It is but evidence of title, which may be rebutted and overturned. Title is a fact. Possession is only testimony tending to prove it. Pleadings are made up of matters averred as facts and not of testimony which merely tends to prove them; unless, perhaps, in cases where the evidence averred is itself the fact, or its equivalent." Wilkinson v. Searcy, 76 Ala. 176. Where the plaintiff relies on mere possession in a suit against a wrongdoer, the better practice is to sue as owner. Crescent News Hotel Co. v. Hines, supra. Under the rule declared by the statute, the averment in the complaint in this case that the plaintiff "had *Page 601 charge and possession" of the motorcycle is insufficient as against the demurrer, in the absence of an averment that the defendant is not the true owner of the property, bringing the case clearly within the letter of the statute. Otherwise stated, on demurrer the averments will be construed most strongly against the pleader, and it will be assumed that the character of defendant's possession was not such as entitled him to maintain an action against the defendant, in the absence of an averment that brings the case within the rule declared by the statute. Western Ry. of Ala. v. Madison, 16 Ala. App. 588,80 So. 162.
The result is that the trial court committed reversible error in overruling the demurrer to the complaint, and for the error pointed out the judgment is reversed, and the cause is remanded.
Reversed and remanded.
1 200 Ala. 144.