Associates Discount Corp. v. Hillary

• Citation: 278 A.2d 592,262 Md. 570
• Decision Date: 25 June 1971
• Docket Number: No. 292,292
• Parties: ASSOCIATES DISCOUNT CORPORATION v. Theodore F. HILLARY et ux.
• Court: Court of Appeals of Maryland

Page 570

262 Md. 570

278 A.2d 592

ASSOCIATES DISCOUNT CORPORATION v. Theodore F. HILLARY et ux.

No. 292.

Court of Appeals of Maryland.

June 25, 1971.

C. Edward Hartman, II, Annapolis (Stanley E. Hartman, Annapolis, on the brief), for appellant.

James G. Perry, Baltimore, Melvin J. Sykes, Baltimore (James G. Perry, Baltimore, on the brief), for appellees.

Argued March 4, 1971, before BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

Reargued June 1, 1971, before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

BARNES, Judge.

The appellees, Theodore F. Hillary and his wife Dorothy Marie Hillary (Hillarys), on November 7, 1967, filed in the Circuit Court for Anne Arundel County a three count declaration charging trespass to realty, personalty and conspiracy to commit same against the appellant, Associates Discount Corporation (Associates). Also charged in the declaration individually and as agents, servants and/or employees of Associates were James Reese, William Osenberg, Charles C. Wanner and Arthur Frank Greenbaum, t/a Adjustment Services, Inc.

Near the end of the trial, the Hillarys pursuant to Maryland Rule 541 moved to dismiss the declaration against all of the defendants except Associates. The trial court (Beardmore, J.) granted the Motion for Dismissal on the condition that it be with prejudice, 'leaving in the case as sole defendant, Associates Discount Corporation.'

Associates then promptly moved for its own dismissal on the theory that a voluntary dismissal with prejudice by the Hillarys of their tort claims against the agents and servants of Associates constitutes a release of Associates, their employer. Associates contends on appeal that the trial court committed reversible error in denying its Motion for Dismissal. The jury subsequently found for the Hillarys on all counts and awarded $19.91 compensatory damages and $15,000 punitive damages. A judgment was duly entered for $15,019.91 against Associates. After the denial by the trial judge of Associates' motion for judgment n. o. v., or in the alternative, for a new trial or a remittitur of the $15,000.00 punitive damages, the judgment became absolute. Associates thereafter filed a timely appeal.

Prior to the Hillarys' Motion for Dismissal, there had been a colloquy between the court and counsel on the question of admitting evidence of the defendants' financial worth for purposes of punitive damages. The court noted that the legislature in passing the Joint Tort-Feasors Act failed to provide for apportionment of damages. Recognizing the unfairness of the possible joint liability of the individual defendants for potentially great punitive damages based on the financial worth of the corporation, the court still indicated that it would allow evidence of the net worth of the defendants.

It was at this point that the Hillarys moved to dismiss the action against all defendants except Associates apparently theorizing that evidence of the financial worth of the more impecunious defendants would have a chilling effect upon possible punitive damages.

The facts giving rise to the action are basically undisputed. In February, 1965, Layton Braun, a friend of the Hillarys, purchased an automobile under an installment contract. This installment contract, which provided for the acceleration of payments and repossession of the automobile in the event that payments were not made when due, was in turn purchased by Associates. After a series of missed payments and bad checks, Associates' office manager, Charles Wanner, instructed his outside adjusters, James Reese and William Osenberg, to repossess the Braun automobile if they could not bring the account to date. On the evening of August 28, 1967, Reese and Osenberg located the Braun automobile parked in the Hillary driveway. The Hillary car was parked directly behind the Braun car, thus making it impossible to take the Braun car without first moving the Hillary car. Reese and Osenberg asked the Hillarys to move their car so that they could take the Braun car. The Hillarys refused, saying that they had been loaned the use of the Braun car for the following dayThat they knew nothing of the finance agreement and that they would not surrender the Braun car without the authorization of Layton Braun or confirmation by the State Police. It was already late at night so Reese and Osenberg called Wanner for further instructions. Wanner instructed them to turn the matter over to Arthur Greenbaum, trading as Adjustment Services, Inc., a repossessing service. Reese and Osenberg called Greenbaum, giving him the address and describing the car to be repossessed. Later that evening after the Hillarys were asleep, Greenbaum moved their car out onto the street and the cars, Greenbaum damaged five over to Associates. In the process of moving the cars, Grenbaum damaged five azalea bushes valued at $19.90 and also made a tire make on the lawn.

Charles C. Wanner, office manager of Associates since 1955, testified that Associates had wrtiten Braun a letter dated September 1, 1967-shortly after the repossession of the Braun car on August 28, 1967-which stated, inter alia, 'Did you know that when we repossessed your car, your rights were not entirely extinguished?' (Emphasis supplied.) This letter was actually received by Braun, a post office registered mail return receipt being in Associates' file. He admitted that Reese and Osenberg had reported to him that the Braun car was at the home of the Hillarys and was blocked in on their driveway. Reese and Osenberg generally stopped work around 7:30 to 8:00 p. m., so that Wanner 'told them since they (the Hillarys) wouldn't give them the car for them to call Adjustment Services and * * * assign it to them who had people that were on the street at all times, or who would work during the night.' In the morning one of the Hillarys called Wanner, told him that the Braun car had been 'repossessed out of their driveway' and complained about their lawn being torn up and some azalea bushes being knocked down. Wanner told the one calling 'to get in touch with Adjustment Services being as they were the people that repossessed the unit for us.' (Emphasis supplied.) Wanner also stated that notwithstanding the notice given to him, he 'still accepted the car from Adjustment Services and put it through the sale.' Wanner also stated that because of the poor record payment of Braun and the frequent defaults in payment, it was 'very urgent that this car be repossessed that particular night.' Wanner testified also that Adjustment Services gave night service a 'lot of times, not always.' At the time he directed that Adjustment Services be called, he knew that the Hillarys had refused to move their own car so that the Braun car could be moved from the Hillary driveway and that the Braun car could not be driven or moved from the Hillary driveway without the Hillary car being moved.

Reese testified that Mrs. Hillary had stated that if a policeman came and told her to move the automobile, she would move it. He reported the situation to Wanner, who told him and Osenberg to call Adjustment Services and tell them to repossess the car.

Greenbaum in his deposition, part of which was read into evidence at the trial, stated that he always attempted to make a repossession on the date of receiving an assignment. When he was given this assignment, he was given no 'directions or warnings in regard to it.'

The jury's award of $19.91 in compensatory damages included the $19.90 under the trespass to realty count and $.01 compensatory damages under the trespass to personalty count for the moving of the Hillary car by Greenbaum.

One of the Associates' arguments on appeal, as mentioned above, is that its only liability is that of an employer whose liability is derived from its employees. It contends that once its employees are released from personal liability, it also by the very nature of its liability is released.

The Hillarys, on the other hand, contend that the dismissal with prejudice is not a final adjudication and does not result in a release of Associates in any event. We do not find it necessary to decide these interesting questions, inasmuch as we have concluded that there was sufficient evidence in the case, with all reasonable inferences to be drawn from that evidence in favor of the Hillarys, to support the jury's verdict for compensatory damages of $19.91. We are of the opinion, however, that there was not sufficient evidence to permit the submission of an issue of punitive damages to the jury, so that the judgment including $15,000 punitive damages must be reversed.

Code (1969 Repl.Vol.) Art. 83, § 141(a) provides:

'(a) When seller may repossess.-When the buyer is in default in the payment of any sum due under the installment agreement, or in the performance of any other condition which it lawfully requires him to perform in order to obtain title to the goods, or in performance of any promise the breach of which is, by the agreement, expressly made a ground for repossessing such goods, the holder may repossess the goods. Unless the goods can be repossessed without use of force, they shall be repossessed by legal process.

Nothing herein shall be construed to authorize a violation of the criminal law.'

Although it is clear from the statute that Associates had the right to enter the Hillary property to repossess the Braun automobile, the statute does not authorize a violation of the criminal law.

The Code of Anne Arundel County (1967), Section 6-119 provides:

'Any person who shall enter upon the land or premises of any other person in the county, to the injury of such land and premises and against the wishes or notice of the owner thereof, shall be liable to a fine of not less than five dollars nor more than ten dollars for each offense to be collected as other fines, and nothing contained in this section shall repeal, modify or be in conflict with any existing law on...