Fulton Nat. Bank of Atlanta v. Marshall

Decision Date07 May 1980
Docket NumberNo. 35806,35806
Citation245 Ga. 745,267 S.E.2d 225
PartiesFULTON NATIONAL BANK OF ATLANTA v. MARSHALL.
CourtGeorgia Supreme Court

Marion H. Allen, III, W. Stanley Blackburn, Atlanta, for appellant.

Richard D. Ellenberg, Atlanta, for appellee.

HILL, Justice.

On September 22, 1976, Fulton National Bank repossessed a 1972 Ford Torino from Roland C. Marshall. Marshall subsequently filed suit against the bank, alleging wrongful repossession and seeking damages for conversion. By amendment he added a claim for conversion based on the allegation that the bank had failed to sell the car within 90 days of repossession as required by Code Ann. § 109A-9 505. The bank counterclaimed for the unpaid balance on the note, interest, cost of collection and attorney fees. The case was tried to a judge on stipulated facts and judgment was entered for the defendant bank on the complaint and on the counterclaim. On appeal, the Court of Appeals reversed the trial court's determination that Marshall was estopped by his initiation of suit from recovering under Code Ann. § 109A-9 505, and remanded for trial. Marshall v. Fulton Nat. Bank, 145 Ga.App. 190, 243 S.E.2d 266 (1978).

The case was retried on Marshall's claim for $2,500 in general damages and $10,710 for hire, and the bank's counterclaim for the balance of the note due, interest, and attorney fees ($393.25). The jury returned a verdict for the bank on Marshall's complaint, and a verdict for Marshall on the bank's counterclaim. On appeal, the Court of Appeals again reversed because of the trial court's failure to charge, despite a written request, as to the measure of damages for conversion, that is as to the value of the vehicle at the time of its conversion and its hire (rental value per day) from the date of conversion. Marshall v. Fulton Nat. Bank, 152 Ga.App. 121(4), 262 S.E.2d 448 (1979).

We granted certiorari to determine whether failure to properly charge on the measure of damages is harmless error where there has been a jury verdict finding no liability on the part of either party.

The trial judge charged the jury in pertinent part as follows: "The plaintiff in this case, Mr. Roland C. Marshall, comes into this court and brings an action, the law calls a tort, and brings it against the defendant, the Fulton National Bank, and seeks a verdict from this jury in the sum of $2,500.00, general damages. And $10,710.00, for hire." "And the Fulton National Bank seeks a verdict from this jury against the plaintiff, Mr. Roland C. Marshall, in the sum of $393.25, which consists of principal, $332.31, and interest of $10.52, and of attorney fees of $60.42, making a total of $393.25." "The court further charges you that if you find that the defendant, Fulton National Bank, is liable to the plaintiff for failing to sell plaintiff's automobile within 90 days of its repossession, you must still reduce the amount of plaintiff's damages by the net amount which plaintiff owes Fulton under his note." 1

The trial judge utilized a verdict form, as follows:

"I. Claim Of Plaintiff Roland C. Marshall

--------------------------------------

We the jury find:

______ for the defendant,

______ for the plaintiff in the following amounts:

Value of automobile__________

Value of hire of the automobile__________

-----------------------------

Foreman

"II. Counterclaim Of Defendant Fulton National Bank

----------------------------------------------

We the jury find:

______ for the plaintiff,

______ for the defendant in the following amounts:

Principal__________

Interest__________

Attorneys' Fees__________

-----------------------------

Foreman

"III. In the claim of Plaintiff we find for the defendant. In

Counterclaim of Defendant we find for the plaintiff. With no

monetary awards to either party.

/s/ W. H. Wyatt

-----------------------------

Foreman"

The court explained part one of the verdict form to the jury in his charge as follows: "But if you find for the plaintiff, you would put a cross mark here. 'We find for the plaintiff in the following amount.' And if you find for the plaintiff, then you would show the amount of the value of the automobile, then you would consider the amount of the hire of...

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15 cases
  • Claxton Poultry Co., Inc. v. City of Claxton
    • United States
    • Georgia Court of Appeals
    • July 15, 1980
    ...most harmless error. See also Marshall v. Fulton Nat. Bank, 155 Ga.App. 51, 270 S.E.2d 281 (1980) by reason of Fulton Nat. Bank v. Marshall, 245 Ga. 745, 267 S.E.2d 225 (1980). This issue may not appear on new trial as plaintiffs may very well be able to present proper evidence substantiati......
  • Ryle v. Sliz
    • United States
    • Georgia Court of Appeals
    • July 8, 1982
    ...Corp., 233 Ga. 32(3), 209 S.E.2d 581, First American Bank v. Bishop, 244 Ga. 317, 320(2), 260 S.E.2d 49; Fulton National Bank v. Marshall, 245 Ga. 745, 747, 267 S.E.2d 225. Secondly--the plaintiff's objection at trial was: "I would like to raise the objection of relevance. How the man died,......
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    • United States
    • Georgia Court of Appeals
    • September 7, 1984
    ...Realty Co., 156 Ga.App. 692, 694 (3), 275 S.E.2d 686; Brand v. Montega Corp, 233 Ga. 32 (3), 209 S.E.2d 581; Fulton Nat. Bank v. Marshall, 245 Ga. 745, 747, 267 S.E.2d 225. 4. At the conclusion of the charge the court instructed the jury on the possible form of its verdict. Defendant object......
  • Tyner v. Sheriff
    • United States
    • Georgia Court of Appeals
    • November 10, 1982
    ...the pretrial order. [Cits.]" Marshall v. Fulton Nat. Bank, 152 Ga.App. 121, 123, 262 S.E.2d 448 (1979) rev'd on other grounds, 245 Ga. 745, 267 S.E.2d 225 (1980). " '[W]e think that it should be held to be the general rule in this state that if a litigant desires a modification of a pre-tri......
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