Carolina Cas. Ins. Co. v. Tisdale, 4 Div. 5

• Decision Date: 08 April 1970
• Docket Number: 4 Div. 5
• Citation: 237 So.2d 855,46 Ala.App. 50
• Parties: CAROLINA CASUALTY INSURANCE COMPANY, a Corporation, and Stokley 'Tip' Chambers, Individually and d/b/a Stokley Chambers & Co., Insurance Adjusters v. James C. TISDALE.
• Court: Alabama Court of Civil Appeals

Page 855

237 So.2d 855

46 Ala.App. 50

CAROLINA CASUALTY INSURANCE COMPANY, a Corporation, and Stokley 'Tip' Chambers, Individually and d/b/a Stokley Chambers & Co., Insurance Adjusters v. James C. TISDALE.

4 Div. 5.

Court of Civil Appeals of Alabama.

April 8, 1970.

Rehearing Denied April 29, 1970.

Albrittons & Rankin, Andalusia, for appellants.

Tipler, Fuller & Melton, Andalusia, for appellee.

WRIGHT, Judge.

Suit was filed in Circuit Court of Covington County, Alabama, by appellee, James C. Tisdale, against appellants, Carolina Casualty Insurance Company and 'Tip' Chambers. The complaint consisted of one count charging appellants with conversion of a tractor-trailer rig belonging to appellee. Damages were claimed in the amount of $25,000. Jury verdict against appellants was returned and judgment entered in the amount of $4,000. Motion for new trial was denied. Appeal was duly taken and comes here on 12 assignments of error.

The first assignment of error is addressed generally to the denial of the motion for new trial. The next 5 assignments are addressed to the denial of the motion for a new trial on stated grounds. These grounds charge collectively that the verdict of the jury was contrary to the evidence, its weight and preponderance and was excessive. It is contended by appellant that the verdict is contrary to the law.

The impact of appellants' argument in brief as to the first 5 assignments of error is that the verdict is contrary to the evidence and law. We shall consider them as one assignment of error.

Appellee was in the trucking business and owned a tractor-trailer unit, commonly referred to as a 'rig.' This 'rig' was insured by appellant, Carolina Casualty Company. On March 17, 1967, the rig was wrecked in Perry, Florida. Appellee was informed of the wreck at his home in Andalusia, Alabama. He immediately notified his insurance broker in Andalusia there had been an accident and that he was going to the scene and would be in touch with him. Upon arriving in Florida appellee arranged for the safety and transfer of the cargo and removed the damaged rig to Perry Truck & Tractor Company in Perry, Florida.

The date of the accident, appellant Chambers, an independent insurance adjuster, was assigned by Carolina Casualty Company to adjust the collision loss of appellee. Chambers located the rig and talked by telephone with the manager of Perry Truck & Tractor Company and with appellee, who was in the manager's office at the time. It was in this conversation that appellee, when informed the rig was to be taken to Birmingham for repairs, allegedly told Chambers he did not want the repairs to be done by the shop in Birmingham ordinarily used by Chambers. Appellee testified that he stated to Chambers to let the rig alone, he did not 'want that bunch up there messing with it.'

Chambers denied such statement was made to him and that arrangements were made for the rig to be prepared for towing to Birmingham. He sent a wrecker and crew from Birmingham to tow the rig back to Birmingham. The wrecker arrived in Perry in the evening, hooked to the rig, and brought it to Birmingham, arriving there on Sunday morning.

Appellee stated that he informed the Florida Highway Patrol to stop anyone moving the trailer and hold them for theft. On Monday morning, appellee found the rig had been taken away from Perry Truck & Tractor Company. He called the claims representative of Carolina Casualty in Jacksonville, Florida and informed him he could not settle his claim with Chambers and asked that another adjuster be assigned. The appellant company refused.

Appellee then complained to the Insurance Commissioner in Montgomery, who relayed the complaint to Chambers. Appellee then proceeded to Birmingham, located his truck at the wrecker company's yard and learned the trailer had been placed with Fruehauf Corporation for repairs. He stated he contacted Chambers by telephone and asked him to come out to the truck and discuss the estimates for repair. Chambers allegedly refused to come and refused to allow the truck to be taken to the White truck place. Appellee stated he then attempted to contact Chambers in the days following but he was always out and unavailable. He finally located him at home at night and told him he was going to move the truck. Appellee states the following was said to him by appellant Chambers, 'you just as well make up your damn mind that Truck Auto Repairs or Car Renovators one are going to fix that truck.' Appellee in reply said, 'I don't know so much about that.' With this exchange, appellee immediately hauled his tractor away to Andalusia at a cost of $281.00.

Appellee's trailer was repaired by Fruehauf and the repairs were accepted by appellee. Appellee signed a release on the trailer which recognized settlement in full for loss and damage arising from the wreck. The release contained in part the following, 'In consideration of such payments, said company is hereby discharged and forever released from any and all further claim, demand or liability whatsoever for said loss and damage, under or by reason of said policy.' It is contended by appellants that these words constituted a release to appellants for any alleged conversion as well as payment under the policy.

We cannot agree that such is the effect or obvious intent and purpose of the release. It is clear that the release applied solely to 'loss and damage, under or by reason of said policy.'

All of the material parts of appellee's testimony were denied by Chambers. Chambers stated that the rig was picked up with appellee's permission and its return was never requested. There was evidence by Chambers that appellee objected to repairs under one estimate, and that it was discarded and another obtained.

Chambers did not specifically deny making the statements charged to him by appellee as quoted above.

Arbitration of the claim for damage to the tractor was attempted but not completed. A draft, for some amount, representing the loss on the tractor was forwarded by the Carolina Casualty Company to appellee. The draft was not cashed and was returned to appellants the day of the trial.

It appears that appellants throughout their argument have difficulty separating the rights and liabilities under the policy of insurance, and those liabilities charged in the suit for conversion. They are totally separate and distinct. While appellants had contractual duties and obligations to appellee to perform under their policy of insurance, they were not entitled to approach these duties in such a manner as to breach rights of appellee in the performance. The rights of appellee referred to are those of ownership and possession in personal property.

The insistence by appellants that there was no evidence or insufficient evidence, to support the verdict and judgment insofar as the conversion by appellants is concerned is, in our opinion, not well taken. The evidence was obviously in conflict as to the acts of appellants in the premises, but we are clear to the point that there was sufficient evidence for the jury's consideration and finding that such conversion occurred.

The position of appellants appears to be that since all of their acts were part and parcel of an effort to adjust or repair appellee's rig, and there was no intent and purpose toward denying appellee's title or destruction of his property, no right of action could arise, and even if so, good intentions should be a complete defense. This is not the law of conversion. To paraphrase a well-known cliche, the road to the courthouse may be paved with good intentions. As stated by the Supreme Court in Long-Lewis Hardware Co. v. Abston, 235 Ala. 599, 180 So. 261, and quoted in Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 571, 206 So.2d 371, 373, 'It has been held by this court that the 'fact of conversion does not necessarily import an acquisition of property in the defendant. '' Howton v. Mathias, 197 Ala. 457, 73 So. 92, 95. 'The conversion may consist, not only in an appropriation of the property to one's own use, but in its destruction, or in exercising dominion over it in exclusion or defiance of plaintiff's right.' (Citation omitted.)

Assuming the taking of the rig in Perry, Florida, not to have been tortious, conversion thereof could have arisen in Birmingham by exercise of dominion over it in exclusion or defiance of plaintiff's right to possession. A conversion is the gist of the action of trover irrespective of the manner in which possession was obtained. Long-Lewis Hardware Co. v. Abston, supra. 89 C.J.S. Trover & Conversion § 65.

The title and right to possession to the 'rig' lay in appellee, without dispute. The only element of the action of conversion remaining for proof by appellee-plaintiff below, were acts of dominion over it by appellants in exclusion or defiance of such right. The jury found as fact the presence of such acts from the evidence. The finding of the jury was strengthened by the trial court's denial of appellants' motion for a new trial. Stallworth v. Doss, 280 Ala. 409, 194 So.2d 566. This Court on review cannot reverse a case on the grounds of insufficiency of evidence to support a verdict, unless after allowing all reasonable presumptions and inferences as to its correctness, it is clear such verdict is erroneous and unjust. So. Ry. Co. v. Reeder, 281 Ala. 458, 204 So.2d 808; Griffin v. Respress, 281 Ala. 168, 200 So.2d 269. As to the issue of a conversion by appellants of appellee's 'rig,' we cannot hold the evidence insufficient to support the verdict of the jury. There was sufficient evidence of conversion, either in the taking of possession in Florida or in exercising dominion in Birmingham in exclusion or defiance of appellee's right of ownership and possession. Since the evidence was in conflict, it was the jury's prerogative to believe or not believe witnesses. Locklear v. Nash, 275 Ala. 95, 152 So.2d 421.

Since we hold there was sufficient...