Beaver v. Magid
| Decision Date | 28 July 1937 |
| Docket Number | 26162. |
| Citation | 192 S.E. 497,56 Ga.App. 272 |
| Parties | BEAVER v. MAGID. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where in a trover action the plaintiff elects to take a money verdict for the value of the property at the date of the conversion, he may also recover interest thereon at 7 per cent. per annum from the date of the conversion, not as interest but as additional damages, and where the evidence as to the value of the property at or before the date of the conversion is such, and the nature of the property is such that its value at the time of the conversion may be reasonably determined, and there is no evidence as to the value of the property after the conversion, its value at the time of the conversion may be allowed by the jury, together with interest thereon as additional damages.
(a) Possession of property, with a claim of title adverse to that of the true owner, constitutes conversion.
(b) "In arriving at a verdict, the jury, from facts proved and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved." "Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity." The presumptions are in favor of the validity of the verdict of a jury. "Where a verdict is ambiguous and susceptible of two constructions, one of which would uphold it, and one of which would defeat it, it 'will not on this account be set aside, but will be given a construction which will uphold it."' The evidence in the present case shows that, in connection with certain realty conveyed by the plaintiff to the defendant, the latter retained possession of personal property under a claim of title adverse to that of the plaintiff, the true owner, and refused to surrender the same on demand by the plaintiff, and the evidence further shows that the value of the property, at the time it was acquired by the defendant, was such, and the nature of the property was such, that the jury was authorized to find the value to be that named in the verdict, and there being no evidence as to the value of the property after the conversion, the verdict found by the jury for a certain amount with interest will be construed to mean that the jury found the value of the property at the time of the conversion to be the amount named in the verdict, rather than the value of the same between the date of the conversion and the trial.
(c) "The plaintiff in an action to recover personal property may elect whether to accept an alternative verdict for the property or its value, or whether to demand a verdict for the damages alone, or for the property alone and its hire, if any; and it shall be the duty of the court to instruct the jury to render the verdict as the plaintiff may thus elect." While this section does not of itself provide that more than the value of the property can be obtained as damages, it is the rule in this state that where a money verdict is sought by the plaintiff in a trover action for the value of the property at the time of the conversion with interest, the jury may return a verdict which shall also include interest on the value of the property from the date of the conversion to the date of the trial, not in a separate and stated amount as interest, but as part of the damages, and to be so included in a lump sum. Interest is not recoverable eo nomine in such a case, but as additional damages, a trover suit being essentially an action ex delicto. The allowance of such additional damages, the equivalent of interest, is predicated on the ground that the plaintiff, having been unlawfully deprived of his property is entitled to be fully compensated for the wrong inflicted on him, and the calculation on a basis of interest at 7 per cent. is deemed a proper measure for the additional damages but, in returning a verdict, the jury should find, not separate amounts, principal and interest, but a total or lump sum which represents the two intermediate findings, and a verdict which is not so rendered is illegal and cannot stand when properly excepted to.
(d) Under the evidence in the present case the jury was authorized to find that the personal property in question, title to which was in the plaintiff, had been converted by the defendant, and that its value at such time was as expressed in the verdict. The verdict, however, being for principal and interest, in two separate stated amounts, instead of a lump sum representing the two, is illegal in so far as the interest is concerned, and cannot stand as written.
2. The charge of the court, "I charge you if the defendant, Sandy Beaver, obtained possession of property belonging to the plaintiff, Mrs. Magid, and converted the same to his own use, then Mrs. Magid would be entitled to recover in this case the value of such property together with interest thereon from the date of the conversion," was not error for the assigned reason that the plaintiff, in electing to take a money verdict, was not entitled to interest as such. The court did not instruct the jury that the plaintiff was entitled to interest as such. The court should have instructed the jury, however, that the verdict should be returned in a lump sum. The charge was not error for the further assigned reason that it was without evidence to support it and not adjusted to the pleadings and the evidence, and that the evidence fixed no value at any date when the defendant could be held liable for the value of the property.
3. The charge of the court, "If you find from the evidence and under the law that the court has given you in charge, that the plaintiff is entitled to recover, she would be entitled to recover the value of such property, if any, that was converted by the defendant, if any was converted, together with interest thereon at the rate of seven per cent. per annum from the date of the conversion, if there was a conversion, and in that event the form of your verdict would be, 'We, the jury, find for the plaintiff so many dollars principal and so many dollars interest,"' was not error for the assigned reason that as the plaintiff elected to take the highest proved value of the property she was not entitled to interest, and the verdict showing that the jury fixed the value at a time prior to any demand or conversion the verdict and judgment are contrary to law, there being no evidence fixing the value of the property as of any particular time. The court should have instructed the jury, however, that they should return a verdict for a lump sum in the event they found for the plaintiff.
4. The ground of the motion for new trial which complains that the court erred in requiring the defendant to testify, over objection, that, after the filing of the trover action, he advertised for sale certain items of the property in dispute is without merit, inasmuch as it is shown by the record that a copy of the advertisement was later admitted in evidence without objection, and consequently the defendant cannot be said to have been harmed.
5. The judgment is affirmed, with direction that within ten days after the remittitur from this court is made the judgment of the trial court the plaintiff write off the entire amount of interest from the verdict and judgment; otherwise the judgment shall stand reversed.
Error from City Court of Hall County; Boyd Sloan, Judge.
Action by Mrs. Righton H. Magid against Sandy Beaver. To review a judgment denying his motion for new trial, the defendant brings error.
Judgment affirmed with direction.
Chas. J. Thurmond, Wheeler & Kenyon, and Hammond Johnson, all of Gainesville, for plaintiff in error.
Robt. Lee Avary, Jr., of Atlanta, and E. C. Brannon, of Gainesville, for defendant in error.
Mrs. Righton H. Magid brought a trover action against Sandy Beaver to recover certain personal property of the alleged value of $2,555 to which she claimed title. By an amendment she elected to recover a money verdict for the "highest proved value of said property, together with interest thereon at seven per cent. per annum from date of demand." The jury returned a verdict for the plaintiff for $700 principal and $110.25 interest. The defendant filed a motion for new trial on the general grounds, and by amendment added several special grounds which will be dealt with hereinafter. The exception is to the judgment overruling the motion.
1. The general grounds and the first special ground may be considered together. It is urged that there was no evidence which authorized the jury to find the value of the personal property as of December 26, 1934, at which time a written demand was made for the property, or at any time between that date and the date of the trial, August 18, 1936, and that the verdict and judgment are too uncertain to be upheld because it is not apparent whether the jury intended to find a verdict for damages with interest, or for the highest proved value of the property with interest, and that if the verdict is for damages, interest, as such, is not recoverable. It is urged with good reason that the jury found the value of the property as of May 14, 1934, and it is contended that this was before the time of any demand or conversion, and that the record is without evidence to show the value of any article sued for on any particular date, either before the alleged conversion or at any fixed time thereafter.
An examination of the evidence is necessary to test the correctness of the verdict. It appears that the plaintiff was the owner of certain realty known as the Clarkesville orchard, and that her husband was the president of a corporation which had an option to purchase realty known as the...
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