Freeman v. Gen. Motors Acceptance Corp., 96.

• Decision Date: 11 October 1933
• Docket Number: No. 96.,96.
• Citation: 205 N. C. 257,171 S.E. 63
• Parties: FREEMAN. v. GENERAL MOTORS ACCEPTANCE CORPORATION.
• Court: North Carolina Supreme Court

171 S.E. 63

205 N. C. 257

FREEMAN.

v.GENERAL MOTORS ACCEPTANCE CORPORATION.

No. 96.

Supreme Court of North Carolina.

Oct 11, 1933.

Appeal from Superior Court, Washington County; R. Hunt Parker, Judge.

Action by W. T. Freeman against the General Motors Acceptance Corporation. From an adverse judgment, plaintiff appeals.

Reversed.

Civil action to recover damages for alleged forcible trespass.

On May 28, 1931, the plaintiff purchased a Chevrolet sedan and executed to the seller and the General Motors Acceptance Corporation a conditional sales contract to secure deferred balance of the purchase price; said contract containing the following stipulation: "Time is of the essence of this contract, and if the purchaser default in complying with the terms hereof, or the seller deems the property in danger of misuse or confiscation, the seller or any sheriff or other officer of the law may take immediate possession of said property without demand (possession after default being unlawful), including any equipment or accessories thereto, and for this purpose the seller may enter upon the premises where said property may be and remove same."

Default having been made in the payments as stipulated in the contract, an agent of the General Motors Acceptance Corporation went to the home of the plaintiff July 27, 1931, and repossessed said automobile.

The plaintiff was not at home at the time. His wife was there with five small children. She testified: "I told him (defendant's agent) I heard my husband say he was going to make a payment on the car that morning, and that he could not get the car without seeing my husband, and he said he didn't have time to waste running around seeing people. * * * I would say his manner was rather harsh. * * * He did raise his voice somewhat from what he had been speaking. * * * When he left the porch, he went out to the car and called the other man and they pushed the car out and took it away. I had protested. There was nobody home but me and my children, the oldest of whom is about five years. There was no man on the premises."

From a judgment of nonsuit entered at the close of all the evidence, the plaintiff appeals.

Zeb Vance Norman, of Plymouth, for appellant.

W. D. Whitley, of Plymouth, for appellee.

STAGY, Chief Justice.

That the defendant had the right, under its contract, peaceably to repossess the automobile is not questioned. Jackson v. Hall, 84 N. C. 489; Hinson v. Smith, 118 N. C. 503, 24 S. B. 541; Moore v. Hurtt, 124 N. C. 27, 32 S. E, 317; Harris v. R. R., 190 N. C. 480, 130 S. E. 319, 49 A. L. R. 1452; Willis v. Whittle, 82 S. C. 500, 64 S. E. 410; 24 R. C. L., 486.

Did its agent commit a trespass in repossessing the car? This is the only mooted point in the case. The trial court was of opinion that he did not, which position is strongly supported by the decision in Willis v. Whittle, supra, a South Carolina case practically on all fours with the one at bar.

But it is the law of this jurisdiction that although an entry on lands may be effected peaceably and even with permission of the owner, yet if, after going upon the premises of another, the defendant uses violent and abusive language and commits such acts as...