C.I.T. Corp. v. Brewer

• Citation: 146 Fla. 247,200 So. 910
• Parties: C. I. T. CORPORATION v. BREWER.
• Decision Date: 25 February 1941
• Court: United States State Supreme Court of Florida

200 So. 910

146 Fla. 247

C. I. T. CORPORATION v. BREWER.

Florida Supreme Court

February 25, 1941

Rehearing Denied March 31, 1941.

En Banc.

Error to Circuit Court, St. Lucie County; Alto Adams, Judge.

Action by J. B. Brewer against the C. I. T. Corporation for damages alleged to have been inflicted by an assault and battery. To review a judgment for plaintiff, defendant brings error.

Affirmed.

COUNSEL Carlton & Sample, of Fort Pierce, for plaintiff in error.

B. K Roberts, of Tallahassee, and Denison & Smith, of Fort Pierce for defendant in error.

OPINION

PER CURIAM.

On writ of error we review judgment in favor of the plaintiff in a suit for damages alleged to have been inflicted by an assault and battery. The facts to sustain a verdict as gleaned from the record are, in effect:

One Amos had bought an automobile under conditional sales contract. The conditional sales contract had been assigned to C. I. T. Corporation, a corporation. J. B. Brewer was president and manager of J. B. Brewer, Inc., a Florida corporation, engaged in the business commonly known as an automobile garage in Fort Pierce, Florida. Amos had delivered the automobile to J. B. Brewer, Inc., to be repaired. The automobile had been repaired. Amos had not paid the repair bill. The automobile was in possession of J. B. Brewer, Inc. just outside of the garage building on the premises of J. B Brewer, Inc. The ignition key had been removed from the automobile by the garage owner or its agent.

One Denmark was agent for C. I. T. Corporation with authority to collect instalments due under conditional sales contract and to repossess automobiles in event of default in payment. Amos and Denmark went into the garage of J. B. Brewer, Inc., and requested J. B. Brewer to make payment for Amos of the amounts in default under the conditional sales contract. Brewer declined to do so, whereupon Denmark said that he would repossess the automobile. J. B. Brewer told Denmark that he was holding the car for the amount due his corporation for repairs and also told Denmark that he could not remove the car from his possession without paying the repair bill. While they were discussing the matter Brewer's attention was called somewhere else and as he turned away Denmark got into the automobile, found the ignition key was not in it and thereupon attempted to remove the automobile from the premises by using the starter as motive power. The noise of the operation of the starter attracted Brewer; he returned and attempted to get Denmark out of the automobile. Denmark resisted and put up a fight. Brewer called on some of his employees to assist him and together they separated Denmark from the automobile. But, in the fight or altercation over possession of the automobile Denmark injured Brewer by either striking him or kicking him in or about the abdomen, thereby causing a serious hernia resulting in great pain and suffering and in permanent injury.

Plaintiff in error has posed seven questions for our consideration, stated as follows:

'1. Has the holder of a conditional sales contract upon an automobile the right to take possession of the automobile when it is parked on the premises of an automobile sales agency and garage serving the public when the holder or his agent is rightfully on the premises and did not commit a breach of the peace or trespass in entering into and taking possession of the automobile?

'2. Has the holder of a conditional sales contract on an automobile the right to defend his possession of the automobile after he has rightfully repossessed it and is in complete charge and control of it?

'3. Has the holder of a mechanic's and materialmen's lien on an automobile the right to physically and forcibly take possession of the automobile from one holding the conditional sales contract of prior date and effect, who is actually in custody and possession thereof?

'4. Is it incumbent upon a trial court to fully charge on all material questions of law pertaining to the facts before the jury after it is specifically requested by one of the parties litigant?

'5. Is it incumbent upon a trial court to instruct the jury at the request of one of the parties litigant as to the law of priority of liens when such issues being before the jury may be confusing in the absence of such instructions?

'6. Is it prejudicial error to charge the jury as follows: 'One who attempts to take the law in his own hands and attain his property rights does so at his peril and is responsible in damages for an assault and battery committed in accomplishing the desired result without process of law' where there is no evidence in the record that plaintiff in error did attempt to take the law into his own hands, and at no time or place in the instructions to the jury did the Court enlarge or enlighten that statement?

'7. Is the verdict rendered in this cause in accordance with the substantial justice of the case as shown by the record?'

The first and second questions indulge the unwarranted...