Genova v. Johnson

• Decision Date: 26 February 1958
• Citation: 321 P.2d 1050,213 Or. 47
• Parties: Paul GENOVA, Respondent, v. Gerald L. JOHNSON, dba Gervais and Johnson Auto Sales, Appellant.
• Court: Oregon Supreme Court

Page 1050

321 P.2d 1050

213 Or. 47

Paul GENOVA, Respondent, v. Gerald L. JOHNSON, dba Gervais and Johnson Auto Sales, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Dec. 4, 1957.

Decided Feb. 26, 1958.

Francis F. Yunker, Portland, argued the cause for appellant. On the brief were Yunker, Fewless & Hannam, Portland.

Bartlett F. Cole, Portland, argued the cause and filed a brief for respondent.

Before LUSK, P. J., and WARNER and KESTER, JJ.

KESTER, Justice.

This is an action for conversion of an automobile. Defendant appeals from a judgment based upon a verdict which awarded plaintiff $100 general damages and $2,000 punitive damages.

On or about August 7, 1952, plaintiff, who was then a minor (he has since attained majority), sought to purchase the car in question from defendant, who was a used-car dealer. According to defendant the transaction had proceeded to the point where they had agreed upon a price and terms, plaintiff had made a $100 down payment, and a receipt had been made out. Then defendant discovered that plaintiff was a minor, and defendant said that he could not sell to a minor on a conditional sales contract. According to plaintiff, defendant told him to get an adult to sign the contract for him. In any event the money was returned and no sale was completed that day.

The next day, August 8, plaintiff returned with an adult friend, Raymond Georgeson, and the purchase was completed with Georgeson signing the contract as buyer. Georgeson also signed a purchaser's credit statement and a blank power of attorney for the purpose of transferring title to the car. Plaintiff made the $100 down payment, defendant gave plaintiff a receipt for the $100, and plaintiff took possession of the car and drove it off. Georgeson left in another car.

Before concluding the sale, defendant went with plaintiff to a garage where they obtained an estimate for repairs to the clutch. Also, there was no key for the car, so after completing the transaction, plaintiff had a key made and came back, whereupon defendant reimbursed him for that expense. These incidents are mentioned only because they show knowledge on the part of defendant that the real purchaser was plaintiff and not Georgeson.

The contract recited a sale price of $675 plus $118.30 as additional charges. The down payment of $100 left a balance of $693.30, which was to be paid in monthly installments of $46.26, the first such payment being due September 1, 1952.

According to plaintiff the car did not operate properly, and on August 15, 1952, one week after the purchase, plaintiff brought it back to defendant's lot and complained that he had been duped. Plaintiff says that he asked to turn it back and have his equity applied on another car, which defendant refused. While they negotiated the car was parked on the street, with plaintiff's girl friend waiting in it. Defendant came out and started the engine, listened for a moment, and then he (defendant) drove the car around to the back of his lot. According to plaintiff, defendant offered him $30 for his equity, which plaintiff refused.

The evidence is conflicting as to just what happened next, but the jury could have found, in accordance with plaintiff's testimony, that defendant took possession of the car, threw out on the ground some of plaintiff's tools and personal effects, and ordered plaintiff off the premises. Plaintiff gathered up his things, and he and his girl friend left the scene. According to plaintiff the incident occurred in front of bystanders, and he was embarrassed and humiliated. On the argument defendant's attorney admitted that there was sufficient evidence to support a finding of a conversion, if plaintiff was the proper party.

There was no delinquency in payments at that time, and according to defendant his reasons for retaking the car were that: (1) plaintiff had been mistreating the car, and (2) plaintiff had no right to possession because the contract required the named purchaser, Raymond Georgeson, not to 'dispose of or lose possession' of the car. Defendant's principal contention in this court is that since the contract was in Georgeson's name, plaintiff had no interest in the car, had no right to possession, and has no standing to complain of the conversion. Defendant does not rely on any contractual right of repossession for breach of contract, as against plaintiff.

Defendant's first contention is that the complaint does not state facts sufficient to constitute a cause of action. Since the complaint is short, we quote it in full:

'I.

'That on or about August 8, 1952, plaintiff purchased from the defendant a certain 1946 Buick automobile, Serial No. 243-80-844 for the sum of $100 down plus certain monthly installments; that defendant, as a condition to making said sale, required the plaintiff to procure a person 21 years of age or over to execute the agreement to pay installments; that plaintiff did procure one Raymond Georgeson to execute the contract as purchaser; that plaintiff paid defendant the $100 down and took possession of said 1946 Buick.

'II.

'That on or about August 15, 1952, the defendant, Gerald L. Johnson, maliciously, intentionally, fraudulently, forcibly, and under aggravating circumstances, to the humiliation and embarrassment of plaintiff, deprived plaintiff of the possession of said Buick sedan and converted it to his own use, that $4,900 is a reasonable sum to be awarded plaintiff as punitive damages.

'III.

'That the value of plaintiff's interest in said sedan at said time and place was the sum of $100; that at said time and place plaintiff was required to use said automobile in going to and coming from his place of employment, which fact was well known to the defendant, Gerald L. Johnson; that plaintiff has been put to time and trouble procuring substitute transportation and generally damaged by being deprived of the use and possession of said Buick automobile, generally damaging plaintiff in the amount of $100.'

Defendant argues:

'(1) That the allegations therein contained utterly fail to assert that respondent had title, ownership, or such possessory right to the motor vehicle in question as would permit him to maintain an action in trover or conversion;

'(2) That there appears no allegation in said Second Amended Complaint indicating or claiming that respondent has sustained damage by reason of appellant's actions which would justify recovery on the theory of conversion.'

No demurrer was filed, and after verdict the complaint must be construed liberally in favor of the pleader. So construed, the allegations that 'plaintiff purchased' the automobile, that he 'took possession' of it, that defendant 'deprived plaintiff of the possession' of it, and that 'the value of plaintiff's interest in said sedan at said time and place was the sum of $100' are sufficient to meet defendant's objections.

While there is no specific allegation that plaintiff was the owner, either generally or of a special interest, at the time of the conversion,...