Dodson v. Ford Motor Credit Co., 6 Div. 58

• Decision Date: 06 January 1971
• Docket Number: 6 Div. 58
• Citation: 243 So.2d 43,46 Ala.App. 387
• Parties: Ellis DODSON, Jr. v. FORD MOTOR CREDIT COMPANY, a Corporation.
• Court: Alabama Court of Civil Appeals

Page 43

243 So.2d 43

46 Ala.App. 387

Ellis DODSON, Jr. v. FORD MOTOR CREDIT COMPANY, a Corporation.

6 Div. 58.

Court of Civil Appeals of Alabama.

Jan. 6, 1971.

Lorant, Bouloukos & Kopelousos, Birmingham, for appellant.

Charles Cleveland, Birmingham, for appellee.

BRADLEY, Judge.

This is a malicious prosecution case filed by the appellant here, Ellis Dodson, Jr., against Ford Motor Credit Company, a Corporation, appellee here, in the Circuit Court of Jefferson County.

The complaint, as amended, contained one count, and alleged that plaintiff had been maliciously and without probable cause sued by Ford Motor Credit Company, a Corporation--hereinafter referred to as Ford--in the Civil Court of Jefferson County for a deficiency resulting from the repossession of a 1964 Ford Galaxie which had been purchased by plaintiff some fifteen months before from Maring Crawford Motor Company.

The amended demurrer filed by Ford was later overruled. Thereupon a plea in short by consent was filed, and a trial ensued before the court and a jury. Upon the termination of the trial, the court directed the jury to return a verdict for Ford, which was done.

An appeal was taken to this court from the action of the trial court.

The tendencies of the evidence reveal that plaintiff-appellant, Ellis Dodson, Jr., hereinafter called Dodson, purchased from Maring Crawford Motor Company, in July 1964, a new 1964 Ford Galaxie with a standard shift. The sales price of the auto was $2,579.50, with Dodson paying $300 down, leaving $2,269.50 to be financed over a period of 36 months at $76,72 per month.

Payments were made regularly for about 15 months, at which time Dodson, because of an inability to continue the payments, requested Ford to repossess the car. The amount due Ford on the purchase agreement at the time of repossession was $1,626.48.

Ford was advised by Dodson that his wife had been in the hospital and he had incurred large medical bills and would be unable to keep up the payments on the car.

Dodson testified that he had made an effort to sell the car and to refinance it, but had been unsuccessful.

At the time the car was repossessed, Dodson was not at home, but his wife was there and turned the car over to the employee of Ford, who took possession and took it to Ford's storage lot.

This employee testified that no agreement was made with Dodson's wife to accept the car in satisfaction of the amount owed on the contract. Mrs. Dodson did not testify at the trial.

Ford's Repossessed Vehicle Appraisal form, introduced in evidence at the trial, indicated the Galaxie to be worth about $1,250. This form also showed the NADA price to be $1,450 wholesale, and $1,835 retail. The NADA is a booklet published semi-annually by the National Automobile Dealers' Association containing suggested prices for various motor vehicles being offered for sale. This booklet is used as a guide by various groups who trade and traffic in motor vehicles in arriving at a price for a particular vehicle.

After the repossession, three bids were taken on the Galaxie, and it was sold to the highest bidder for $1,200.00 as is, without any reconditioning.

After the sale of the Galaxie, Dodson was notified that there was a deficiency in his contract of $418.86 and was offered several ways of paying it off.

Dodson's attorney wrote Ford and stated that the value of the Galaxie at the time of repossession was more than the balance due.

Ford's attorneys advised Dodson that if the deficiency was not paid or some arrangement made to pay, they would have to file suit for the amount due.

No payment was made by Dodson, and suit was filed against him in the Civil Court of Jefferson County for the amount deemed to be owed to Ford.

There was a trial in the Civil Court without a jury, resulting in a judgment for Dodson. There was no appeal from this judgment.

Dodson then sued Ford in the Circuit Court for malicious prosecution for having filed suit on the deficiency in the Civil Court.

The question presented to this court for answer is whether the trial court erred in directing a verdict in favor of Ford.

It was held in Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555, that an action for malicious prosecution is one:

'* * * 'not favored in law,' and the action has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another, and the courts have allowed recovery only when the requirements limiting it have been fully complied with. (Citations omitted.)

'One of the reasons for this rule is that public policy requires that all persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge. If this were not the case, a large proportion of unsuccessful civil actions would be followed by suits for malicious prosecution, and there would be a piling of litigation on litigation without end. (Citations omitted.)

'We feel strongly that a litigant should be entitled to have his rights determined in a court of law without risk of being sued and having to respond in damages, for seeking unsuccessfully to enforce his rights, * * *.'

This court has held that for a plaintiff to succeed in a malicious prosecution case, the averments and proofs must show: (1) a judicial proceeding; (2) that it was instigated by the defendant; (3) want of...