Ford Motor Credit Co. v. Jackson

• Decision Date: 08 June 1977
• Citation: 347 So.2d 992
• Parties: FORD MOTOR CREDIT COMPANY, a corp. v. Willie JACKSON. Civ. 1098.
• Court: Alabama Court of Civil Appeals

Page 992

347 So.2d 992

FORD MOTOR CREDIT COMPANY, a corp. v. Willie JACKSON.

Civ. 1098.

Court of Civil Appeals of Alabama.

June 8, 1977.

Rehearing Denied July 6, 1977.

N. T. Braswell, III, Montgomery, for appellant.

Timothy B. Loggins, Opp, for appellee.

HOLMES, Judge.

From a jury verdict awarding Willie Jackson $2,536.06 for the wrongful conversion of his automobile, the Ford Motor Credit Company (Ford), defendant below, prosecutes this appeal.

Ford through able and experienced counsel states the trial court erred in denying both its motion for judgment notwithstanding the verdict for insufficiency of evidence and also its motion for a mistrial based on improper argument of counsel. Ford additionally contends erroneous jury instructions concerning the appropriate measure of damages for conversion requires reversal of the judgment entered below. We disagree with each of these contentions.

The tendencies of the evidence disclose that Willie Jackson, plaintiff below and appellee herein, is an uneducated man of 56 years. He is unable to read and can write only his name. He has been employed as a laborer for a pecan company for approximately 16 years. He also has worked part time as kitchen help at a country club in Andalusia for approximately 26 years.

Sometime in July, 1974, Jackson purchased a 1974 Mercury Marquis automobile from a Pensacola dealership which assigned the purchase agreement to Ford. The new automobile cost approximately $8,500. As a down payment, Jackson paid $300 cash and traded in a 1972 automobile for which he received $1,736 credit. He signed an agreement whereby he agreed to pay the balance of the purchase price in 36 monthly installments of $230.75.

On March 11, 1975, Ford sent someone to repossess the automobile from Jackson because he was allegedly delinquent in his payments. The individual who repossessed the car for Ford was wearing a badge and gun.

Thereafter, Ford sold the repossessed automobile to the dealer who had originally sold it to Jackson. Proceeds from the sale were credited to Jackson's account, leaving a balance of $250 owed to Ford.

In January, 1976, Jackson filed a complaint alleging the wrongful conversion of his automobile by Ford. In April, prior to trial, Jackson was deposed. At that time, he testified that he had made five or six payments on the automobile. He was unable to remember if he had made the first payment in July or August. He stated payments were due on the 15th of the month. He stated he didn't have any receipts for his payments. He had gotten upset after the car was taken and had thrown everything away.

Trial was had in the Circuit Court of Covington County on November 9, 1976.

Jackson at trial testified that he had made his first payment on July 15. He made his payments by certified check or money order. He had found receipts for three of his payments. Jackson stated that some receipts had been in the car when it was repossessed. He stated that a payment he made in February had been returned to him when Ford repossessed his automobile. Jackson also stated:

"Q. And you made how many payments that you absolutely remember?

"A. I know I sent eight.

"Q. Do you think you might have sent nine?

"A. I may have, probably sent nine, but I know I sent eight."

On cross-examination, Jackson explained the inconsistencies in his deposition and trial statements regarding the number of payments he had made by stating that he had "got to checking it over" and determined that he made 8 or 9 payments. He also stated that he made his first payment in August.

Jackson admitted having made one late payment in February. It was this payment that Ford refused to accept. The date on the money order which was returned to Jackson was February 25, 1975.

Other pertinent portions of Jackson's testimony are as follows:

"Q. Did you, after that Deposition, did you figure up and sit down and figure out how many payments you had made on that car?

"A. Yes.

"Q. All right, how many payments did you make?

"A. I know of . . . I made eight.

"Q. Were you late?

"A. As far as I know I weren't late because I had paid it up through there.

"Q. You paid ahead of time?

"A. That's right.

"Q. When you were paying in February, you were paying ahead of time still?

"A. That's right."

Ford's evidence was directly opposed to Jackson's. The contract of sale disclosed payments were to have begun August 1, 1974. Additionally, Andrew Warren, Ford's collection supervisor, testified that Jackson made 5 payments. He stated the money order for the sixth payment was not accepted and was returned to Jackson due to the delinquency of the account. His testimony was based on records maintained by his department.

As previously stated, the jury returned a verdict for Jackson in the amount of $2,536.06. From the trial court's denial of its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, Ford took this appeal.

I

Ford contends the trial court erred to reversal in denying its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial for insufficiency of evidence.

Alabama law with regard to the granting of a motion for judgment notwithstanding the verdict is clear. The motion should not be granted if there is any conflict in the evidence for the jury to resolve. Moreover, the existence of such evidence is to be determined by the scintilla rule. Wright v. Packer, Civ.No. 1028, Ala.Civ.App. (April 27, 1977); McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975).

Ford contends the evidence adduced at trial does not constitute a scintilla of evidence that Jackson was not in arrears. Ford states that where testimony of a witness is incredible, unbelievable, or inherently improbable, it is to be disregarded as without probative value. King v. Brindley, 255 Ala. 425, 51 So.2d 870 (1951); American National Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So. 21 (1938); Peters v. Southern Railway Co., 135 Ala. 533, 33 So. 332 (1902).

Albeit Ford's statement of the legal principle is valid, the principle has no applicability to this case. We believe the cases upon which Ford has relied are distinguishable from that presently before this court. In King and Peters, supra, the Supreme Court of Alabama refused to hold credible testimony which undisputed objective facts proved invalid.

Thus, the court, after discussing what the evidence disclosed with regard to the condition of two automobiles and their passengers subsequent to a collision between the vehicles, stated that one party's testimony that one of the vehicles was traveling 70 m. p. h. was unbelievable. Similarly, in Peters, the court failed to attach any weight to the plaintiff's testimony which sought to place in issue his contributory negligence concerning an injury he sustained when walking across railroad tracks. The plaintiff stated that he had stopped, looked, and listened before crossing the tracks. The court, after a statement of the distances and speeds involved, noted that a simple mathematical calculation revealed that the plaintiff could not have stopped and looked for the train, made any diligent attempt to get off the tracks, and still have remained on them upon the arrival of the train. Hence, his testimony was insufficient to create a material conflict in the evidence.

In this instance, there are no objective facts which conclusively establish the occurrence or nonoccurrence of the events in question. Hence, the holding of King and Peters, supra, are inapposite.

Moreover, we do not equate Jackson's testimony with that of the defendant in American National Bank & Trust Co., supra. In that case the defendant testified that prior to her seventeenth birthday she had earned $60,000 by selling newspaper clippings in Mobile in the early 1900's. The Supreme Court of Alabama stated that such testimony was so unrealistic that no credit could be attached to such a statement.

In this case, we have testimony which neither can be disproven through application of objective facts nor which is so inherently improbable or unreasonable as to be without probative value as a matter of law. Jackson merely testified that he had made the automobile payments in question. Although his testimony on direct and cross-examination was contradictory, such contradictions do not in this instance make the testimony unbelievable as a matter of law so as to require reversal by this court. The question of which part of Jackson's testimony was believable was for the jury. Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824 (1956); see Semmes Nurseries, Inc. v. McVay, 279 Ala. 42, 181 So.2d 331 (1965).

Ford also contends that Jackson failed to establish a prima facie case of conversion. Ford states Jackson admitted that he made a late payment in February and failed to make a payment in March of 1975. Under the security agreement he executed with Ford, such action on his part would constitute default and entitle Ford to possession of the car. Hence, Ford had a superior right to the property. We cannot agree.

Jackson also testified that he made eight payments, the first one having been in July of 1974. Under this view of the evidence, the payment rejected by Ford would have been for March. The payor will not be placed in default by the payee's rejection of a payment which has been tendered on time. Thus, one reasonable interpretation of the evidence disclosed that Jackson was not in default, had a superior right to possession, and consequently, did establish a prima facie case of conversion. Ford's contentions with respect to the sufficiency of evidence are therefore without merit.

II

Ford asserts opposing counsel's improper closing argument requires reversal.

Ford's argument is directed at...