Deavers v. Standridge, 54798

• Decision Date: 02 February 1978
• Docket Number: No. 54798,No. 2,54798,2
• Citation: 242 S.E.2d 331,144 Ga.App. 673
• Parties: , 23 UCC Rep.Serv. 834 Billy DEAVERS et al. v. M. A. STANDRIDGE
• Court: Georgia Court of Appeals

Page 331

242 S.E.2d 331

144 Ga.App. 673, 23 UCC Rep.Serv. 834

Billy DEAVERS et al. v. M. A. STANDRIDGE.

No. 54798.

Court of Appeals of Georgia, Division No. 2.

Feb. 2, 1978.

Holcomb & McDuff, Michael G. Colquitt, Marietta, for appellants.

Cobb & Ivester, L. S. Cobb, J. Fred Ivester, Marietta, for appellee.

BANKE, Judge.

The appellants, Billy Deavers, Frank Deavers, and Walker Motor Co., appeal a jury verdict awarding the appellee, Mark A. Standridge, actual and punitive damages for the wrongful repossession of his automobile as being contrary to the evidence. They also appeal the overruling of several motions for directed verdict.

The appellants sold the appellee, pursuant to a conditional sales contract, a 1965 Chevrolet automobile. The balance due after trade-in allowance was $282.50 and was to be paid in 12 weekly installments due on the Friday of each week. The appellee testified that he was unable to make the second payment and that appellant Billy Deavers agreed orally that he could make two payments the following Friday (August 1). Billy Deavers testified that appellee never paid any money on the contract and denied making any agreement postponing the due date for the second payment. At trial the appellee was unable to produce the receipt allegedly given him upon payment of the first note.

The appellee testified that he was prevented from making the double payment on Friday, August 1, because he had to work an 11-hour shift, but that he had intended to make the payments the following day on his lunch hour. Instead, Ronnie Deavers, brother of the appellants, came by the appellee's place of employment that morning to repossess his car. Rather than consenting to the repossession, appellee testified that he drove the car to the appellant's place of business and tendered the overdue payments but that appellants refused the tender and demanded that he pay the entire unpaid balance. Appellee could not do so, so appellants repossessed the car. Appellee further testified that the appellants caused his car to be "blocked-in" by another and told him that he could just "walk his ass home." Appellee's witness confirmed that he tried to pay the past-due amount and that appellee's car was blocked in. The appellants deny either of these acts or that the appellee tendered all past-due monies. Appellee then filed this action seeking damages for the wrongful repossession of his car.

1. Unless otherwise agreed in the contract between the parties, "a secured party has on default the right to take possession of the collateral . . . without judicial process . . ." so long as ". . . this can be done without breach of the peace . . ." Code Ann. § 109A-9-503. See Ford Motor Credit Co. v. Milline, 137 Ga.App. 585, 224 S.E.2d 437 (1976). Here the conditional sales contract clearly provided for repossession upon default of any payments (see Whisenhunt v. Allen Parker Co., 119 Ga.App. 813(4), 168 S.E.2d 827 (1969)); and even if we adopt appellee's version of the testimony regarding the oral agreement, he was still in default since he did not attempt to make the double payment until Saturday. Thus, the primary issue before this court on appeal is whether the appellants breached the peace in repossessing appellee's car such that they are now liable for damages.

Under our criminal law, abusive and insulting language constitutes a breach of the peace if there is an accompanying incitement to immediate violence. See Faulkner v. State, 166 Ga. 645(3), 144 S.E. 193 (1928). See also Code Ann. § 26-2610(a) (1968 Ga.L., pp. 1249, 1316; 1974 Ga.L., p. 470) (use of opprobrious or abusive words in presence of another which " naturally tend to provoke violent resentment," i. e., fighting words, is a misdemeanor).

The term "breach of the peace" used in Code Ann. § 109A-9-503 is not defined by the Uniform Commercial Code (Code Ann. Title 109-A). However, decisions from other jurisdictions have indicated that the term has a much broader meaning as used in the Uniform Commercial Code than that usually attributed to it under the criminal law. See J. White and R. Summers, Uniform Commercial Code, 1972, pp. 972-975 (and cases cited therein) (1972). As White and Summers concluded, most courts find a breach of peace by any creditor who repossesses over the unequivocal oral protest of the defaulting debtor; and some courts even require that the debtor, if present, must affirmatively consent for the repossession to be lawful. Neither party in this case has argued that Georgia has (or has not) adopted a broad interpretation, and we issue no opinion on that subject at this time.

The trial judge, here, charged that "the term breach of the peace is a general term and includes all violations of the public peace or order or decorum." See generally Sanders v. City of Columbus, 140 Ga.App. 441(3), 231 S.E.2d 473 (1976). While the evidence offered by the appellee for proving a breach of the peace was not strong, we cannot say that the jury was unauthorized to find, in accordance with the appellee's testimony (as confirmed in part by his eyewitness), that the appellants' combined acts of blocking-in the appellee's auto and speaking to him in offensive, insulting language were sufficiently provocative of violence to constitute a breach of the peace. See Simpson Grocery Co. v. Holley, 51 Ga.App. 355(1), 180 S.E. 501 (1936); Mathis-Akins Concrete Block v. Tucker, 127 Ga.App. 699(1),194 S.E.2d 604 (1972); Code § 70-206; Ridley v. State, 236 Ga. 147(1),223 S.E.2d 131 (1976) (weight of evidence addressed to trial court alone, not appellate court).

2. The appellants allege that the trial court erred in overruling their motion for directed verdict on the ground that market value of the property allegedly converted was not...