Haas & Howell v. Godby

• Decision Date: 15 December 1924
• Docket Number: 15459.
• Citation: 125 S.E. 897,33 Ga.App. 218
• Parties: HAAS & HOWELL v. GODBY.
• Court: Georgia Court of Appeals

125 S.E. 897

33 Ga.App. 218

HAAS & HOWELL v. GODBY.

No. 15459.

Court of Appeals of Georgia, Second Division

December 15, 1924

Syllabus by the Court.

"Whoever meddles with another's property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith, nor, in case of an agent that he delivers the property to his principal before receiving notice of the claim of the owner.If an agent takes the property of another without his consent and delivers it to the principal, it is a conversion, and trover will lie for the recovery of the property or for damages, as the plaintiff may elect."

(a)"An agent, who, for and in behalf of his principal takes the property of another without the latter's consent, is as to him guilty of a conversion, although, being ignorant of the true owner's title, the agent may have acted in perfect good faith, and such agent may be sued in trover for the property, even after his delivery of it to his principal."

(b) Assuming that the plaintiff was the owner of the property in dispute, the evidence was sufficient to authorize the inference of a conversion by the defendants as alleged.

(c) It is true that admissions may be the subject of explanation but where the party to whom they are ascribed denies that he made them, and it is thus issuable before the jury as to whether they were made or not, and there is no evidence that if they were made, their author was laboring under a misapprehension of the facts, their effect is not avoided as a matter of law merely by other testimony pointing to a different conclusion, even though such other testimony is not directly contradicted.

Assuming that, where a verdict is rendered in favor of the plaintiff in a trover case for a certain sum as the value of the property converted, and for another sum as hire, the defendant may, under a general assignment attacking the verdict as a whole, bring into question the sufficiency of the proof to sustain the verdict as to the amount awarded for hire, the verdict for hire was fully warranted by the evidence in this case.

Title to property in a certain person, once proved or admitted, is presumed to continue until the contrary appears, but the law presumes that title follows the possession of property, and this presumption applies to personalty as well as realty.Where A. is shown to have been at one time the owner and possessor of property, and it is proved that subsequently the property is in the possession of B., and where nothing else appears, the presumption of the continuance of the title in A. is rebutted, the presumption then being that the title went with the property to B.Applying these principles to the facts dealt with in the third division of the opinion, the inference was warranted that the title to the property in dispute was in the plaintiff at the time he brought the action for its recovery.

Nor was such inference negatived by additional facts stated and discussed in the fourth division of the opinion.The plaintiff claimed to have purchased the property in question on November 6, 1920.It was conclusively established that some time prior thereto the title to the property was in a person other than the plaintiff's vendor, and that such other person who held a policy of insurance thereon against theft, had, subsequently to the plaintiff's purchase, collected the insurance upon a claim that the property had been stolen from him, and had thereupon undertaken to invest the insurer with title.The jury were authorized to find, under the evidence, that the automobile had not been stolen, but that the title prior to the origination of the claim of the insurance company had passed from the assured into the plaintiff's vendor, and from the latter to the plaintiff, notwithstanding that such vendor delivered to the plaintiff a fictitious or forged bill of sale along with the delivery of the property, the circumstances warranting the conclusion that the assured and the plaintiff's vendor had entered into a conspiracy with reference to the use of this instrument, and that there was a combination between them whereby the assured might fraudulently collect the insurance, although having conveyed the title to the plaintiff's vendor.

The decisive issue between the parties being whether or not the property in dispute--an automobile--had been stolen as the assured had represented to the insurance company, which, on the collection of the insurance, he purported to invest with the title, there was no error harmful to the defendants in the following instruction: "If you believe, under the evidence, that the car was not stolen, but was sold to the plaintiff with the knowledge and consent of [[the assured] in November, 1921, then [the assured] would have no title or interest in the car, and could not have conveyed any right to the insurance company or any other person;" the assignment thereon being that there was no evidence to show that the property was sold to the plaintiff with the knowledge and consent of the assured.If the automobile was not stolen, no other inference was authorized except that the plaintiff in his purchase procured the title, and the defendants were not prejudiced by the instruction that, as a condition to this result, the sale must have been with the knowledge of the assured, whether there was evidence authorizing an inference of actual knowledge on his part of the immediate transaction or not.If the plaintiff's vendor was the assured's vendee, as the jury were authorized to find, then the sale to the plaintiff was necessarily by the assured's implied consent.

Any distinct act of dominion wrongfully asserted over another's property, in denial of his right or inconsistent with it, is a "conversion."Any act which negatives or is inconsistent with the owner's title and right of possession is necessarily wrongful.It is not error, therefore, to instruct the jury that such an act would amount to a "conversion," without also informing them that in order to amount to a "conversion" it must have been wrongful.

Nor, in view of the issues, did the court commit reversible error in so instructing the jury as to make the claim asserted by the defendants--namely, that the title to the property was in the insurance company--depend upon its right of subrogation, notwithstanding that the insurance company at the time of paying the alleged loss took a writing from the assured expressly conveying to it the property which was the subject-matter of the insurance, since the company could not have had title either by this instrument or under the right of subrogation unless the property had in fact been stolen, and since the instruction complained of required the jury, if they found the property had been stolen, to recognize the right of the insurance company under its claim of subrogation as fully as they might have recognized such right under the purported express conveyance.

The evidence authorized the verdict, and for no reason urged was it error to overrule the defendants' motion for a new trial.

Error from Superior Court, Fulton County; W. D. Ellis, Judge.

Action by H. A. Godby against Haas & Howell.Judgment for plaintiff, and defendants bring error.Affirmed.

On July 20, 1920, Morris Miller purchased and had delivered to him a new five-passenger Buick touring automobile from John M. Smith Company, taking a bill of sale from the seller to himself.On the same date he procured to be issued in his favor by the Provident Washington Insurance Company, through their agents Haas & Howell, a policy upon the automobile, insuring it against theft for the period of one year.The policy contained a provision "requiring the assured to assign to the company, upon the payment of a loss for the theft of the car all of his right, title, and interest in and to the car, as well as all right of recovery against any party for loss or damage to the car."

On December 27, 1920, Miller submitted to the company sworn "proofs of loss," in which he claimed that the automobile was stolen from him on the previous October 27th.The amount of his claim was $1,450.Attached thereto was the original bill of sale procured by him from the dealer at the time of his purchase.The insurer paid the claim and took from him a receipt, which recited that in consideration of the payment he invested the company "with full rights of ownership in and title to" the automobile, and in which he also subrogated the company to all his "claims or rights against any third person or persons to the amount of the loss and expenses paid."

The Automobile Underwriters' Detective Bureau, acting for the insurer, and having located the automobile in the possession of H. A. Godby, demanded the same of him on December 3, 1921.The detectives declared to him that the car was stolen property to which the insurance company had title, and inquired of him whether he would surrender it peaceably or would exact that they proceed at law for its recovery.He permitted them to take it without process.He subsequently brought an action of trover against Haas & Howell, in which a verdict was rendered in his favor for $1,000 as the value of the property, and for $500 as hire.The defendants made a motion for a new trial, which was overruled, and error is assigned upon that judgment.Other material facts are given in the opinion.All the transactions involved in the case occurred in the city of Atlanta, except as otherwise stated.

Underwood, Pomeroy & Haas, of Atlanta, for plaintiffs in error.

Hardwick & Jordan, of Atlanta, for defendant in error.

BELL, J.(after stating the facts as above).

1.One of the contentions made by the plaintiffs in error, the defendants in the court below, is that, assuming that the...