General Motors Acceptance Corp. v. Davis
| Decision Date | 28 July 1931 |
| Docket Number | 20291. |
| Citation | 7 P.2d 157,151 Okla. 255,1931 OK 482 |
| Parties | GENERAL MOTORS ACCEPTANCE CORPORATION v. DAVIS. |
| Court | Oklahoma Supreme Court |
A private corporation, like an individual, is liable for the acts of its agent in instituting a malicious prosecution, if the agent's acts were done while acting within the scope of his authority.
Syllabus by the Court.
In an action for malicious prosecution, where there is a conflict in the evidence as to whether the person causing the prosecution was acting as agent for defendant, and there is competent evidence tending to establish agency and the authority of the agent to institute the proceedings, and the jury finds the issues in favor of plaintiff, this court on appeal will not disturb the verdict because of insufficiency of the evidence to establish agency and the authority of the agent.
In an action for malicious prosecution, injury to reputation and credit are proper elements of damages.
Consultation with the county attorney before swearing to a complaint charging a criminal offense is no defense to an action for malicious prosecution unless the facts were fully and fairly stated to the county attorney in such consultation.
Plaintiff in his pleadings, sufficiently pleaded a cause of action in conversion, but in his prayer prayed for a return of the converted property or its value in case a return thereof could not be had. At the conclusion of the evidence the trial court permitted an amendment of the prayer to conform to the allegations of the pleadings and evidence. Held not error.
Although a chattel mortgage provides that the mortgagee, under certain conditions, may take possession of the mortgaged property yet neither the mortgagee, its assignee, nor his agents, have the right to take possession of the property by threats or the use of unauthorized criminal process. Possession so taken may constitute conversion of the property.
Under section 7423, C. O. S. 1921, a person holding a lien on personal property extinguishes the lien by wrongfully converting the property to his own use.
Where one obtains the property of another through threats and the unlawful use of criminal process, and converts the same to his own use, the injured party may maintain actions against him for conversion and malicious prosecution; but in such case exemplary damages cannot be recovered in both actions.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by John W. Davis against the General Motors Acceptance Corporation. Judgment for plaintiff, and defendant appeals.
Modified and affirmed.
Pierce McClelland & Kneeland, of Oklahoma City, for plaintiff in error.
Billups & Billups, of Oklahoma City, for defendant in error.
This is an action by John W. Davis against General Motors Acceptance Corporation to recover damages for conversion of an automobile and for malicious prosecution because of the unlawful use of criminal process in obtaining possession thereof.
In his first cause of action plaintiff claims damages in the sum of $1,000 because of conversion of his automobile, and $500 punitive damages; and in his second cause of action claims $1,000 actual damages and $500 punitive damages.
The jury returned a verdict in his favor for $545 actual damages and $500 punitive damages on his first cause of action and $1,000 actual damages and $500 punitive damages on his second cause of action, and judgment was entered in accordance with the verdict.
Defendant contends that the evidence is insufficient to sustain the judgment, and that the court erred in overruling its motion for a directed verdict.
The evidence offered on behalf of plaintiff discloses facts substantially as follows: On the 24th day of July, 1927, he purchased an automobile from the Underwood Motor Company of Pampa, Tex., and made a cash payment thereon in the sum of $800, and executed installment notes and a mortgage on the automobile to secure the payment of the balance of the purchase price. The notes and mortgage were thereafter transferred by the motor company to defendant. With the consent of the motor company, he removed the car to the state of Oklahoma and procured employment in an oil field at St. Louis, Okl. He defaulted on the payment of the installment notes due December, 1927, and January, 1928. In February, 1928, R. E. Limbocker made some inquiry of him relative to the location of the automobile, and a few days thereafter L. G. Thomas, defendant's agent, and Limbocker demanded that the notes be immediately paid or the automobile be surrendered to defendant. He at that time advised them where the automobile was, but refused to surrender it, and stated to them that, if given a few days' time, he could get the money from his employer to take up the past-due installments. On the following day he was arrested on the charge of concealing mortgaged property, on complaint sworn to by Limbocker. He was arrested by a deputy sheriff and taken before a justice of the peace in Seminole and placed in his charge overnight. While under arrest, Limbocker told him that a warrant was also sworn out against him in the state of Texas for removing mortgaged property, and that a sheriff from Texas was then on his way to Oklahoma to arrest him on the warrant, and that, unless he surrendered the car before the sheriff arrived from Texas, he would be taken to that state to answer the charge. Under this threat he agreed to deliver the automobile to Limbocker. Under the direction of Thomas he delivered the car at Seminole the next morning and it was there placed in a garage and the criminal case against him was dismissed. He thereafter communicated with his employer and obtained the money from him to pay all past-due notes, but was unable to locate the automobile. He made inquiry of defendant's agent relative thereto, but obtained no satisfaction.
Plaintiff further testified that he was brought before the justice of the peace by the deputy sheriff about 5:30 or 6:00 o'clock at night. That Limbocker called Thomas at his hotel over the telephone and advised him of plaintiff's arrest and asked him what was to be done with plaintiff. That after the conversation Limbocker stated that he would have to stay in jail until the next morning, and started to take him to jail. That the justice of the peace then took charge of him and permitted him to remain at his house for the night. That the car was at that time at the home of his wife's sister. That he had agreed with Limbocker to deliver the car the next morning. That Thomas came to the office of the justice of the peace the next morning and inquired for Limbocker. That plaintiff and Thomas looked for Limbocker and discovered that he was not in a condition to go with plaintiff to deliver the car. That, at the request of Thomas, a deputy sheriff by the name of Smythe went with him to get the car. That the car was brought to Seminole and placed in a garage, and plaintiff was discharged.
Thomas testified that he was general field manager for defendant, and that he had charge of the Oklahoma state branch office. He admitted that in company with Limbocker he called on plaintiff and demanded possession of the car. He denied, however, that he authorized the arrest and testified that he protested against the issuance of the warrant. He, however, testified that after plaintiff's arrest Limbocker did call him at his hotel and advised him of the arrest, and also admitted that he agreed to assist Limbocker in procuring a return of the car.
Defendant, in its original answer, admitted that it was the owner of the mortgage at the time the car was taken. That it employed Limbocker to get the car and the car was taken by Limbocker and returned to it. It, however, denied that it authorized the arrest of plaintiff. This answer was sworn to by defendant's assistant manager and was offered in evidence by plaintiff.
It later, however, amended its answer in which it alleged that it had no interest in the car at the time it was taken by Limbocker, and that after it was taken it was delivered to the Underwood Motor Company. It, however, in its amended answer, admits that it was assisting the motor company in recovering the car, and that Limbocker was acting under its direction in attempting to locate the car. It denied, however, that it authorized the arrest of plaintiff. The case was tried on the amended answer.
Limbocker's testimony was about as follows: H...
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