Davis v. Nash Central Motors

• Decision Date: 11 January 1960
• Docket Number: No. 23032,23032
• Citation: 332 S.W.2d 475
• Parties: William N. DAVIS, Respondent, v. NASH CENTRAL MOTORS, a Corporation, Appellant.
• Court: Missouri Court of Appeals

Page 475

332 S.W.2d 475

William N. DAVIS, Respondent, v. NASH CENTRAL MOTORS, a Corporation, Appellant.

No. 23032.

Kansas City Court of Appeals, Missouri.

Jan. 11, 1960.

Richard K. Phelps, Kansas City, for appellant.

Preston H. Longino, Byron E. Mintonye, Kansas City, for respondent.

MAUGHMER, Commissioner.

Plaintiff William N. Davis had a verdict and judgment in the amount of $350 actual and $5,000 punitive damages against defendant corporation. His claim is based upon the alleged wrongful taking and conversion of his 1951 Nash automobile, including tools stored therein. Since defendant on appeal questions if the evidence was sufficient to justify submission, and because of the punitive damages issue, it is essential, we think, that the facts be presented and reviewed quite fully.

In the latter part of July, 1957, plaintiff purchased the automobile in question--a used 1951 Nash--from defendant at its 63rd Street and Troost lot, Kansas City, Missouri. The purchase price of $295 was fully paid through a $100 trade-in allowance and $195 in cash, plaintiff having borrowed this sum from Murphy Finance Company. The written sales agreement recited that the car was bought 'as is', although plaintiff said he did not notice that provision at the time. It was plaintiff's testimony that he immediately had difficulties in operating the vehicle. He said that before he got home the water boiled; that he put in more water at a filling station; that it boiled again; that he called defendant and was advised that the thermostat had stuck, so he bought a new one and had it installed. He said the brakes 'went out' a few days later and 'wouldn't hold'; that he took the car back to defendant's lot, where a one-armed mechanic, whose name he did not know, adjusted the brakes. Some two weeks later the engine became very noisy. He took the car to defendant's main office at 45th Street and Troost, where he talked with the shop foreman, who told him a whole new set of pistons was needed. Plaintiff says he told the foreman to 'Go ahead and fix the car'. He then talked with Mr. Claude R. Freeman, general sales manager, who told him the company would bear no part of this repair expense. Plaintiff then saw Mr. Lester E. Johnson, office manager, and tried to work out an arrangement to pay this repair bill, which amounted to $182, through monthly payments. Plaintiff testified that Mr. Johnson told him he would have to pay the whole bill in cash. Plaintiff says he returned to the shop later in the day, told Mr. Johnson: 'I have to have my car in the morning' and Mr. Johnson replied: 'You can go ahead and get your car and we will have to settle this later'. Plaintiff's version is that he then 'got in my car and drove off'. Plaintiff's narrative thus far is not materially disputed by defendant or by its witnesses, Mr. Johnson and Mr. Freeman, except they deny that plaintiff was given permission to drive the car away without paying the repair bill, and they disclaim knowledge as to just when or how the car was removed from the premises. Mr. Johnson did state, however, that after he became aware that the car was missing, there was a conference participated in by himself, Mr. Freeman and Mr. Barnes, owner of the business, and he shortly thereafter called Mr. Robert L. Stone, d/b/a as Bonded Adjustment Service, gave him a description of the automobile, including license number, plaintiff's name and address, and employed him to 'locate the car'. The agreed fee for this service was $45.

Robert L. Stone, operating as Bonded Adjustment Service, was in the business of adjusting automobile credit accounts. His testimony was that Mr. Johnson 'wanted his car back, that is what he said'. He stated that his only contact with the defendant thereafter was 'to advise them of the status of the account'. He said he called Mr. Johnson the morning after his first meeting with plaintiff, and reported.

The record shows (testimony of plaintiff and Mr. Stone) that Mr. Stone alone or with 'his partner' made three unsuccessful and a fourth successful effort to gain actual possession of the automobile. Stone first called at plaintiff's home, 8200 Sterling, Raytown, Missouri, and endeavored to persuade plaintiff to drive the car to defendant's lot. Plaintiff says Mr. Stone at that time told plaintiff he was a deputy sheriff. Plaintiff refused to go and suggested they go instead to the office of the Prosecuting Attorney. Mr. Stone did not agree with that suggestion and left with his mission unaccomplished. A few days later Mr. Stone's partner saw the automobile parked at 31st and Woodland, got the hood up and was trying to get the car started. Before he was able to get this done, plaintiff, Mr. Stone, who was apparently not far away, and a police officer came upon the scene. After a discussion, Stone and his partner left without the car. A few days later, after plaintiff returned from work, he observed a man 'leaning inside his automobile'. The hood had been raised and the man was working with a wire in the engine. It developed that this man again was Mr. Stone's partner. He called Stone, plaintiff called the police, and both arrived at about the same time. Plaintiff said the partner told him he was taking the car back to Nash Motors. After some discussion with plaintiff, Stone, his partner and the police participating, Stone and his aide withdrew, again without possession of the automobile. A few more days passed and plaintiff, upon returning from work one evening, parked the automobile in his private driveway next to his house. When he got up the following morning, September 6, 1957, and looked out, the car was gone. He said he had some tools worth $50 to $75 in the car. He called the sheriff's office and reported that the automobile had been stolen. It developed that it had been taken away during the night by Mr. Stone and his partner. We summarize the details of that occurrence as recounted by Mr. Stone. He said he had been employed by Mr. Johnson, defendant's general manager, to 'handle the account' of plaintiff; that 'the car had disappeared and he wanted it back'. This was his only employment by Nash Motors. He said that no one for Nash Motors directed or controlled his conduct in the handling or adjustment of this account. He admitted that on the night in question, some time after midnight, he and 'his partner' pushed the automobile from where plaintiff had left it parked, to his partner's house and later they took it to 'one of the dealer's lots'. He said that they did not knock on plaintiff's door or do anything to attract his attention, or ask his permission to take the automobile.

Plaintiff, a few days later, called at defendant's lot and requested return of the automobile. His request was refused and as Mr. Freeman, defendant's general sales manager, stated at the trial, 'The car is, was and still is in our custody'. Although no witness knew or admitted or testified as to just when or how the automobile was moved from Stone's storage lot to defendant's, the fact remains that it did get there, that such was Stone's ultimate object in taking the car, and that defendant refused to grant plaintiff's request and demand for its return.

Defendant filed a motion for directed verdict at the close of plaintiff's case. It was overruled and defendant lists that action as its first assignment of error. After this motion was overruled, defendant went ahead and offered evidence. It thereby waived the point. Lindsay v. McLaughlin, Mo.App., 311 S.W.2d 148; Wilt v. Waterfield, Mo.Sup., 273 S.W.2d 290, 294; Daniels v. Smith, Mo.Sup., 323 S.W.2d 705, Section 510.280 RSMo 1949, V.A.M.S. True, defendant renewed its motion at the close of all the evidence, and that motion too, was overruled, but defendant on appeal does not complain of this action. However, its second assignment is that the evidence is insufficient to sustain the verdict and judgment. In considering and ruling this assignment we shall, in effect, likewise determine if a motion at the close of all of the evidence should have been sustained. In addition to questioning the sufficiency of the evidence to justify submission on either actual damages or punitive damages, defendant asserts that even though Stone was its employee he was, nevertheless, an independent contractor, rather than an agent, and defendant is not responsible or liable for his unlawful acts. Defendant also contends that the giving of Instruction Five A was error. It makes no claim that the amount of damages allowed, either actual or punitive, is excessive.

We have set forth the facts and the evidence rather fully. We have no hesitancy in saying that the actions of Stone and his partner,--their four attempts to secure possession of the automobile,--were improper. Defendant does not really assert the contrary and since it benefitted from the unlawful taking, received and still holds the automobile even after demand for its return, is, we think, guilty of conversion.

Plaintiff's main Instruction One required the jury as prerequisites to a plaintiff verdict to find that (a) defendant permitted plaintiff to remove the automobile from defendant's premises; (b) defendant 'caused Stone to take the automobile from plaintiff's home during the nighttime and against the will of plaintiff' and (c) that defendant has kept and retained possession against the will of plaintiff. It is stated in 2 C.J.S. Agency Sec. 30: 'The scope and extent of an agency depends on the terms of the agreement and the intention of the parties, * * *'.

Defendant now insists and Mr. Johnson in a measure so testified, that it employed Mr. Stone for the sole purpose of locating the car and that such was the full extent of his...