Douglas Motor Co. v. Watson

• Citation: 22 S.E.2d 766,68 Ga.App. 335
• Decision Date: 14 November 1942
• Docket Number: 29822.
• Parties: DOUGLAS MOTOR CO., Inc., et al. v. WATSON.
• Court: Georgia Court of Appeals

22 S.E.2d 766

68 Ga.App. 335

DOUGLAS MOTOR CO., Inc., et al. v. WATSON.

No. 29822.

Court of Appeals of Georgia, Division No. 2.

November 14, 1942

James R. Murphy and Price Edwards, both of Buchanan, for plaintiffs in error.

No appearance for defendant in error.

SUTTON Judge.

Mrs Annie Lou Watson brought a trover action against the Douglas Motor Company for a described automobile of the alleged value of $700 and for hire thereof. The defendant answered admitting possession of the automobile, but denied that the plaintiff had any title to the property involved. The case proceeded to trial and the jury returned a verdict for the plaintiff for $216.72. The defendant made a motion for a new trial, and the exception here is to the judgment overruling that motion on the general grounds.

The plaintiff in error contends that the amount of the verdict was in excess of what the plaintiff was entitled to recover. It appears from the evidence that the automobile in question was purchased by the plaintiff from the defendant, under a retention title contract, in July, 1940, and that it was damaged or wrecked by the husband of the plaintiff on February 14, 1941, and was on that date placed in a garage by the plaintiff for repairs. On May 15th thereafter, the defendant, without permission or authority from the plaintiff, removed the automobile from the garage and took possession of it. The plaintiff testified that the value of the automobile at the time it was taken possession of by the defendant was $700 and that the reasonable hire thereof was $25 per month; that the face value of it was $880 (meaning the purchase price). Joe Douglas, an officer of the defendant company, testified that the plaintiff owed a balance of $533.38 on the automobile when the defendant took it out of the garage and took possession of it, and that she had made eight payments of $27.08 each on the purchase price of the automobile. He also testified that the balance due at the time the defendant took the car included interest on the remaining deferred payments, insurance, and carrying charges, and that "She didn't actually owe $535; taken in consideration of rebate it would be a little less than that--I would say approximately $35 to $50, not over $50, rebate."

Where the vendor of personal property to which title is retained until it is paid for in full wrongfully deprives the vendee of possession, the vendor is guilty of conversion, and the vendee may maintain an action of trover against the vendor for the property. White v. Dotson, 41 Ga.App 436(1), 153 S.E. 233; Walker v. Ayers, 47 Ga.App. 113, 169 S.E. 784. "The plaintiff in an action to recover personal property may elect whether to accept an alternative verdict for the property or its value, or whether to demand a verdict for the damages alone, or for the property alone and its hire, if any; and it shall be the duty of the court to instruct the jury to render the verdict as the plaintiff may thus elect." Code, § 107-105. When the plaintiff elects to demand a verdict for damages alone, as she did in the present case, and the evidence shows that the interest of the plaintiff in the property at the time of the conversion is less than that of absolute ownership, the measure of damages will be the value of the plaintiff's interest therein, whatever it may be. Holmes v. Langston, 110 Ga. 861, 867(2), 36 S.E. 251. Where the plaintiff in a trover action elects to ...