Ford Motor Credit Co. v. Ditton

• Decision Date: 06 March 1974
• Citation: 295 So.2d 408,52 Ala.App. 555
• Parties: , 14 UCC Rep.Serv. 1474 FORD MOTOR CREDIT COMPANY v. Starlene C. DITTON. Civ. 268.
• Court: Alabama Court of Civil Appeals

Page 408

295 So.2d 408

52 Ala.App. 555, 14 UCC Rep.Serv. 1474

FORD MOTOR CREDIT COMPANY v. Starlene C. DITTON.

Civ. 268.

Court of Civil Appeals of Alabama.

March 6, 1974.

Rehearing Denied April 10, 1974.

Joe S. Pittman, Enterprise, N. T. Braswell, III, Montgomery, for appellant.

Cassady & Fuller, Enterprise, for appellee.

WRIGHT, Presiding Judge.

This is an appeal from a judgment against defendant in an action of trespass of personal property. The verdict and judgment was for $5,000.00.

The evidence generally is not in dispute and was as follows: Appellant-Ford Motor Credit Company purchased a conditional sales contract for an automobile from Dismuke Ford of Enterprise, Alabama. The vendee of the automobile was the husband of plaintiff. After purchase, the plaintiff and her husband were divorced. As part of the divorce decree, plaintiff was given the automobile and her husband was directed to maintain the payments.

On July 10, 1972, an agent of Ford Motor Credit Company called plaintiff at her home at night, identified himself and informed her that payments on the car were in default and that he wished to take possession of the car. Plaintiff refused to relinquish possession. Appellant's agent then asked to come to her home and discuss the matter. Plaintiff assented. The agent came immediately to plaintiff's home. Further conversation did not cause plaintiff to agree to relinquish possession. She referred the agent to her former husband. The agent talked to him by phone from plaintiff's home. The ex-husband stated the payments due were in the mail and that plaintiff was not to give up the car.

Plaintiff called her attorney, Mr. Joe Cassady, at his home. The agent talked with him. Cassady told him that possession was not to be given and that court action would be necessary. A call was made by the agent to his superior in Montgomery. The superior called Mr. Cassady. Mr. Cassady again told the superior that possession would not be given and that detinue would have to be filed. All of these conversations occurred while the agent was at the home of plaintiff on the night of July 10. While at plaintiff's home, the agent obtained from her information as to her place of employment and the hours of her work. The agent and his superior informed plaintiff and Cassady that it appeared they would have to 'steal' the car. After some two hours of palaver the agent left plaintiff's home.

On July 12, 1972, appellant's agent, Brian, located the automobile in the parking lot at Cairns Field, Fort Rucker, Alabama, the place of plaintiff's employment. He obtained a wrecker and towed the automobile away to the lot of Dismukes Ford in Enterprise. After an interchange between Cassady and agent Brian, not material to the issues, plaintiff started and drove the automobile away.

On July 17, 1972, the delinquent payments were received in appellant's Montgomery office. Plaintiff filed suit December 22, 1972, on the common count for the wrongful taking of personal property.

The basic issue of the appeal is whether the taking possession of the automobile by appellant under authority of its contract after being informed that consent to taking was denied and that action through the court was necessary, constituted a wrongful taking and a trespass as a matter of law.

We have not been cited nor have we found any case which has involved the factual situation of this case. It has long been the law in this state that the title holder under a conditional sales contract, who becomes entitled to repossess for conditions of the contract broken, may take possession of the property, provided he does not in doing so use force or threats of violence against the person having possession or control or does not breach the peace. Street v. Sinclair, 71 Ala. 110; Stowers Furniture Co. v. Brake, 158 Ala. 639, 48 So. 89; Folmar & Sons v. Copeland & Brantley, 57 Ala. 588; McGill v. Holman, 208 Ala. 9, 93 So. 848; Singer Sewing Machine Co. v. Hayes, 22 Ala.App. 250, 114 So. 420; Crews & Green v. Parker, 192 Ala. 383, 68 So. 287; American Discount Co. v. Wyckroff, 29 Ala.App. 82, 191 So. 790; McWaters v. Gardner, 37 Ala.App. 418, 69 So.2d 724; Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 893. Title 7A, § 9--503, Uniform Commercial Code.

The gist of the action of trespass is an injury to the possession of personal property by use of unlawful force. Unlawful force is the essential element of the action. Cox v. Stuart, 229 Ala. 409, 157 So. 460; Webb v. Dickson, 276 Ala. 553, 165 So.2d 103. Such force may be actual physical force or it may be constructive force. Constructive force in such cases has been defined in a general way as that sort, such as threats or intimidation, to compel the submission of plaintiff against his will to the appropriation of what he asserts to be his property. Jones v. Americar, Inc., supra. The threats or intimidation referred to are those which if carried out would...