Howell v. Godby
| Decision Date | 15 December 1924 |
| Docket Number | (No. 15459.) |
| Court | Georgia Court of Appeals |
| Parties | HAAS & HOWELL. v. GODBY. |
(Syllabus by the Court.)
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] 1. One of the contentions made by the plaintiffs in error, the defendants in the court below, is that, assuming that the plaintiff had title to the automobile, the evidence failed to show any possession of, or any exercise of dominion over, the car by them, or any act on their part amounting to a conversion. It is insisted that the evi dence established without dispute that the Automobile Underwriters' Detective Bureau was maintained by certain insurance companies, including the Provident Washington, and that the defendants Haas & Howell had no connection therewith. After the car had been seized by the detectives it was stored in a garage, from which it was later delivered to a salvage company on the order of the detective bureau. The salvage company sold it for the insurer and remitted to the insurer the proceeds of the sale. It is contended that the defendants had no relation, directly or indirectly, to any of these transactions.
We cannot agree that the evidence was such as to demand a finding in favor of these contentions. Mr. Herman J. Haas, a member of the defendant firm, testified that when Miller informed them that the car was stolen they immediately notified the Automobile Underwriters' Detective Bureau "to try and look out for it." The detectives, on the seizure of the car, having referred Godby to Haas & Howell, his wife called at their office on the same day and had a conversation with Mr. Haas, looking to a recovery of the automobile. She testified:
"I went to the office of Haas & Howell
* * * to see if I could get the car, and I talked with Mr. Herman Haas. * * * He said they had the car; I understood him to say that. He says, 'We have the car.' I says, 'What can I do, Mr. Haas?' And he says, 'I don't know, unless I sold it back to you.' I says, 'I don't want to buy our own car;' and he says they had the car, and it was stored down on Auburn avenue. He says, 'We have it stored.' * * * I was in the office of Haas & Howell at that time. * * * He wouldn't deliver the car back; he insisted I pay the money for it. He called up John M. Smith and asked him the price of a car, and then turned to me and said, 'The price of the car, judging by what they said, would be between $800 and $1,000;' and he said he could sell the car back to me.
* * * I did not pay the $600, and they never delivered the car to me. * * * I went there for the purpose of getting the car.
The plaintiff also introduced a letter dated March 17, 1922, signed by Haas & Howell, addressed to his wife, reading as follows:
It is not insisted that Mr. Haas was not speaking with the full authority of the firm of which he was a member. If, in usingthe word "we, " he referred to the Insurance company and not to his firm, he nevertheless, in thus speaking in the first person, identified his firm with the act of the insurance company in seizing the car. The testimony of the plaintiff's wife was contradicted at every point where it would tend to connect the defendants Haas & Howell with the conversion, but, the jury having found in favor of the plaintiff, this court, on a consideration of the general grounds of the motion, is bound by that version of the testimony most favorable to the plaintiff which the Jury were authorized to adopt. The evidence of Mrs. Godby, and the letter quoted above, tended to show admissions on the part of the defendants from which it was inferable that they were parties to the conversion of the automobile —assuming that the plaintiff had title thereto. Upon this point the jury were fully authorized to find in favor of the plaintiff.
Flannery v. Harley, 117 Ga. 483, 485, 43 S. E. 765, 766. "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." McCon-nell v. Prince, 12 Ga. App. 54, 76 S. B. 754, and cases cited. See, also, National Bank of Tifton v. Piland, 22 Ga. App. 471, 96 S. E. 841; Coley v. Dortch, 139 Ga. 239, 77 S. E. 77; Wilkes v. Dixie Cotton Co., 143 Ga. 588, 589, 85 S. E. 706; Ocean Steamship Co. v. Southern States Naval Stores Co., 145 Ga. 798, 89 S. E. 838; Porter v. Jones, 23 Ga. 467 (1); Byrd v. Freeman, 32 Ga. App. —, 122 S. E. 630.
It is true that admissions may be the subject of explanation (Hill v. Armour Fertilizer Works, 21 Ga. App. 45 [5], 93 S. E. 511; William Hester Marble Co. v. Walton, 22 Ga. App. 433 [4], 96 S. E. 269; 1 R. C. L. 473, § 9), hut, 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. Chero Cola Bottling Co. v. Southern Express Co., 29 Ga. App. 656 (2), 116 S. E. 325; Redd v. Lathem, 32 Ga. App. ——(1), 123 S. E. 175. Thus the jury were not precluded from inferring, from the evidence in relation to the admissions, that the defendants were parties to the conversion, merely because there was other testimony which, if standing alone, might have demanded the conclusion that the defendants were in no way connected therewith. The rule is not here applicable that, where an inference is drawn solely from circumstances and is not demanded thereby it may be overcome as a matter of law by the positive and uncontradicted testimony of unimpeached witness, consistent with the circumstantial evidence relied on by the other party. Frazier v. Georgia R. Co., 108 Ga. S07 (1), 33 S. E. 996; Western & Atlantic R. Co. v. Beason, 112 Ga. 553 (1), 37 S. E. 863; Atlantic Coast Line R. Co. v. Drake, 21 Ga. App. 81 (4), 94 S. E. 65; Neill v. Hill, (Ga. App. No. 15452), 123 S. E. 30.
If the defendants had admitted (or not denied) the making of the admissions, and had shown by unimpeached evidence consistent therewith that they were made by mistake, or the...
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