Assuming the subsidiary points correctly decided, I must yet insist that the decision is wrong in result for the simple reason that on the record, construed as favorably as it can be for plaintiff, there is no showing of conversion.
Stripped of all camouflage of mere characterization by interested witnesses, the controlling facts are these: The automobile was towed into Casselton on order of defendant. That was the sensible as well as lawful thing to do in the interest both of owner and insurer. *Page 119 So far nobody claims any tort. From Casselton the car was taken to the Steen Berg garage at Fargo. There it was in the possession of neither plaintiff nor defendant, but rather and only in that of Steen Berg, who had it as bailees for the purpose of the repairs. Plaintiff admits that Mr. Vogel, the adjuster, assured her, and that she understood, she could have the job done anywhere else. She preferred to give the work to a Mr. Constant at Calloway, in Minnesota. She talked with him and found that "he could not repair it" for the price made by Steen Berg. Defendant being unwilling to pay more than the amount of their estimate, plaintiff agreed that the work should be done by Steen Berg. She had been told, as she admits, that defendant "was willing to have it repaired anywhere." Mr. Erickson, shop foreman for Steen Berg, testified without contradiction that he explained to her what had to be done. "She was satisfied that we could do the work all right and agreed to have it done by us." She ordered on her own account the additional item of brake lining, payment for which was not chargeable to defendant. Due to delay in getting new parts from the factory, the job was not completed until August 8. From that time on plaintiff could have taken her car at any time upon payment of the bill for repairs.
The attitude of Vogel, the adjuster, is evidenced better by his correspondence with plaintiff at the time than by her testimonial characterizations of it on the witness stand. There is nothing in the correspondence to qualify what he said to her in the letter of October 17, 1931, which he concluded by saying:
"With reference to your car, it has, as you have been advised, been ready long ago and is still waiting for you at the Steen Berg garage in Fargo. Draft in payment of the claim as well as the proof to be signed by you is in my possession, and I will be glad to turn it over to you upon your completion of the proof."
So plaintiff must have understood all along that while she was being delayed in getting the draft by her refusal to sign the proof of loss as Vogel wanted it signed, including the subrogation agreement, *Page 120 her automobile awaited her at the garage and that she could get it whenever she wanted it.
The adjuster blundered when he insisted on a subrogation agreement where there was no right to subrogation. But it is plain that he never did, nor intended to do, anything denying plaintiff's property in the car or her right to the immediate possession of it. Of course it was understood that if he would pay the repair bill she could get it at any time. It was understood also — we cannot take it otherwise in view of the record — that Steen Berg were entitled to retain possession under the lien given them by the statute of North Dakota, which is in evidence. The adjuster should have paid that bill promptly and without delay. The only wrongdoing chargeable to him, and so to defendant, is that he defaulted in that obligation. That does not constitute conversion.
In Brandenburg v. N.W. Jobbers C. Bureau, 128 Minn. 411,413, 151 N.W. 134, L.R.A. 1915D, 474, conversion is defined thus:
"To constitute a conversion of personal property there must be some exercise of the right of complete ownership and dominion over it, to the total exclusion of the rights of the owner, or else some act done which destroys it or changes its character or in some way deprives the owner of it permanently or for an indefinite length of time."
Here there was no deprivation of the owner's right chargeable to defendant. The deprivation, if any, was due solely to the possessory lien of Steen Berg. Concededly, defendant should have paid their bill promptly. But its default was only breach of contract obligation to pay money, and not at all assertion of right to possession of the car or any interest therein. Nor did it in any way impede plaintiff's repossessing her property. She could have paid the bill, taken the car, and at once sued defendant upon its obligation to pay the damage, the only obligation ever put upon it by the contract of insurance. With our aid that contract obligation is now supplanted by one in tort to take and pay for the car.
As to the recovery of the insurance premium unearned at the time of the alleged conversion, I am equally unable to agree. If *Page 121 upon that point the majority opinion is correct, we have a new element added to the measure of damages in all cases of trover involving insured property. The converter is liable, as heretofore, for the market value of the property at the time of conversion, plus the element now added of any and all unearned portions of insurance premiums, of whatever character, which had been paid for insurance on the converted chattel. That is hardly fair against an insurer who is made to assume a greater burden than he was paid to assume. He is thereby not only made to perform something more than his contract obligation but also, and simultaneously, is deprived of part of the compensation paid him for assuming any obligation.