Investment Securities Corp. v. Cole
| Decision Date | 30 November 1937 |
| Docket Number | 26180. |
| Citation | 194 S.E. 411,57 Ga.App. 97 |
| Parties | INVESTMENT SECURITIES CORPORATION v. COLE. |
| Court | Georgia Court of Appeals |
Judgment Adhered To December 20, 1937.
Rehearing Granted Dec. 10, 1937.
Syllabus by the Court.
1. The gist of the action of trespass is injury done to the possession of the property.
2. The recovery for trespass to personal property is limited to actual damages in the absence of aggravations for which exemplary or punitive damages are allowed.
3. When one sues for trespass because the defendant caused process against an outsider to be levied on the personal property of the plaintiff owned and held in lawful possession, in order to show that the aggravating circumstances were of such a kind or character as to entitle the plaintiff to recover exemplary damages, it is essential for him to prove malice or lack of probable cause, or to show a willful or wanton trespass.
4. The malice required for the recovery of exemplary damages in cases like the instant one need not amount to ill will hatred, or vindictiveness of purpose, it being sufficient if the defendant was guilty of willful or even conscious or intentional disregard of the interest of the plaintiff, this being the equivalent of legal "malice" justifying punitive damages for trespass.
5. The demurrers to the petition were not meritorious.
6. The amount of the verdict in this case suggests bias or prejudice and we deem it our duty to order a new trial on this ground only. Exemplary damages should be adjusted to all of the circumstances of the case.
Error from City Court of Baxley; Alvin V. Sellers, Judge.
Action by R. E. Cole, Jr., against the Investment Securities Corporation. Judgment for plaintiff, and defendant brings error.
Reversed.
Joe Schreiber, of Waycross, J. B. Moore, of Baxley, and Memory & Memory, of Blackshear, for plaintiff in error.
Highsmith & Highsmith, of Baxley, for defendant in error.
The plaintiff sued for punitive or exemplary damages as well as actual damages. In his petition the plaintiff claimed actual damages of $500 for the market value of the car and $1 per day as hire from the time of the seizure until the time of the trial, a period of 168 days. On the trial the plaintiff testified that the fair market value of the car was $400 instead of $500 and as to the additional value he testified The verdict was for $2,500, the full amount sued for. The jury therefore, must have at least allowed $1,932 for punitive damages.
The plaintiff's testimony tended to show that plaintiff was a young business man living in Appling county and that he had recently become engaged in business in the adjoining county of Jeff Davis; that he was in possession of an automobile which in good faith he had bought and paid for; that the finance corporation (the defendant) was in possession, as transferee, of a conditional sales contract, executed subsequently to the time the defendant bought the car, covering this same automobile; that this conditional sale contract was executed by the wife of the person who sold the automobile to the plaintiff, and that she lived in Pierce county; that the finance company was in possession of full knowledge of the claim of the plaintiff to this car; that the finance company initiated its attachment proceedings in Pierce county, and, when the finance company undertook to levy on the car and prosecute its case against Cole in Pierce county, Cole protested against the levying on his car and warned the defendant not to deprive him of the possession of his property by levying thereon and told them that if they would bring a procedure in his home county of Appling and prosecute the case against him in the county of his residence, he would produce the car so that the case might proceed, otherwise he would not produce the car; that he did not wish to test the title and ownership of his car in a foreign county; that, among other things, he would be forced to give a bond in the foreign county where he probably knew no one in that county who would sign his bond; that on the night before the levy the agent of the defendant and a special deputy of the sheriff of Pierce county saw the car at the plaintiff's home and could have levied on the car in his home county of Appling, but, instead, waited until the next morning when the plaintiff had gone into Jeff Davis county where he did business and there levied upon his car and, that, after this, a deputy sheriff levied upon the car and entered his levy upon the second original attachment and carried the car into Pierce county; that the sheriff of Pierce county on the same day made an entry on the original attachment, and, included in the entry of the sheriff, was a statement that he found the car abandoned in the streets of Blackshear (Pierce county); that the plaintiff informed the defendant that he had bought the car from Mr. Hires, the husband of Mrs. Hires, and that the defendant made no inquiry of Mr. Hires as to the truth of this statement. However, the plaintiff himself testified that the wife, Mrs. Hires, was the person whom the defendant claimed had executed their conditional sale contract and that she, in the presence of the plaintiff and the defendant's agent, said that her husband told her he had only loaned the car to the plaintiff and that the plaintiff remained silent in her presence.
In its answer "defendant denied that the automobile in question belonged to plaintiff and denied all the allegations in plaintiff's declaration to the effect that defendant acted in bad faith or in disregard of the rights of plaintiff or otherwise than in perfect good faith and under a bona fide claim of right in the prosecution of its claims against Dr. M. K. MacMillan Hires [a resident of Pierce County], and in having the writ of attachment against Dr. Hires levied upon the automobile claimed by and in the possession of plaintiff."
As stated in its brief, the defendant's evidence tended to show "that the attachment for purchase money which it sued out was based upon a retention of title contract executed by Dr. M. K. MacMillan Hires [the wife of J. Skelton Hires] to Appling Motor Company and J. Shelton Hires and transferred to it by Appling Motor Company and J. Shelton Hires, covering the Plymouth automobile levied on and claimed by plaintiff to be his property; that defendant in perfect good faith and for value and without any sort of notice of any defect therein or defense thereto, bought said contract; that, not being able to collect the instalments on said contract as they fell due, defendant sued out an attachment for purchase-money against Dr. Hires in her home county, but for some time thereafter was unable to locate the automobile covered by the contract and afterwards found in the possession of plaintiff in Jeff Davis County and levied on there, the same apparently having been hidden out to prevent its seizure under legal process; that defendant believed it had a just and honest claim against said M. K. MacMillan Hires and said automobile, and, in instituting and prosecuting said claim by an attachment for purchase money, defendant acted in entire good faith and without malice towards plaintiff or any one else." That the defendant's agent examined the records at the Appling county courthouse, among other things, to see if the plaintiff had recorded a bill of sale to the car. (However, it is unnecessary for the plaintiff to record or even get a written bill of sale to an automobile if he purchases it, then and there pays for it, and takes possession thereof.)
1. This is a case where one sues for trespass on account of a wrongful levy of an attachment on his property as property of the defendant in attachment and seeks to recover both actual and punitive damages. "An execution or other similar process against one person levied upon the property of another person is a trespass." Maxwell v Speth, 9 Ga.App. 745, 750, 72 S.E. 292, 294. "When [one] sues for trespass because the defendant caused process against an outsider to be levied on property which the plaintiff owned and held in lawful possession, he cannot recover punitive damages without showing malice, or lack of probable cause, or without showing a willful or wanton trespass." Maxwell v. Speth, supra. The recovery for trespass to personal property is limited to compensation (actual damages) in the absence of aggravations, for which exemplary or punitive damages are allowed. The gist of such an action of trespass is the injury done to the possession of the property. Jones v. Lammon, 92 Ga. 529, 530, 18 S.E. 423; 4 Southerland on Damages, 4th Ed., p. 4158, § 1092; Bartlett v. Chaviers, 14 Ala.App. 279, 69 So. 975; 63 C.J. 889, § 5 (B). "In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff." Code, § 105-2002. This provision of our Code "is comprehensive in its terms, and embraces every tort of every character and description, committed by every kind of wrong-doer, and visits upon the offender exemplary damages, or damages to compensate for wounded feelings." City & Suburban Railway Co. of Savannah v. Brauss, 70 Ga. 368, 379. However, in a case such as the instant one, in order to show that the aggravating circumstances were of such a kind or character as to entitle the plaintiff to recover exemplary damages, it is essential to prove malice or lack of probable cause, or to show a willful or wanton...
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