Manhattan Credit Co. v. Brewer, 5-2278

• Decision Date: 09 January 1961
• Docket Number: No. 5-2278,5-2278
• Citation: 99 A.L.R.2d 354,341 S.W.2d 765,232 Ark. 976
• Parties: , 99 A.L.R.2d 354 MANHATTAN CREDIT CO., Inc., Appellant, v. Pat Maddox BREWER, Appellee.
• Court: Arkansas Supreme Court

Page 765

341 S.W.2d 765

232 Ark. 976, 99 A.L.R.2d 354

MANHATTAN CREDIT CO., Inc., Appellant, v. Pat Maddox BREWER, Appellee.

No. 5-2278.

Supreme Court of Arkansas.

Jan. 9, 1961.

James R. Howard of Moses, McClellan, Arnold, Owen & McDermott, Little Rock, for appellant.

W. M. Herndon, N. Little Rock, for appellee.

WARD, Justice.

Appellant, Manhattan Credit Co., Inc., repossessed a Ford automobile belonging to appellee, Mrs. Pat Brewer, under the provision of a chattel mortgage because of delinquent payments. Appellee sued for conversion, and the trial court, sitting as a jury, gave her judgment in the sum of $200. Appellant here seeks a reversal on the ground that there is no substantial evidence to show a wrongful taking of the automobile.

The chattel mortgage executed by appellee, dated April 22, 1959, shows that appellee was to pay $919.65 in fifteen equal monthly installments of $61.31. Pertinent language in the chattel mortgage reads as follows:

'In case default be made in the payment of said debt * * * or any of the payments above scheduled * * * said Mortgagee at his option, without notice, is hereby authorized to enter upon the premises of the Mortgagor or other places where said property might be, and take possession of and remove said property, * * * and without legal procedure, sell the same and all equity of redemption of the Mortgagor therein * * * and out of the proceeds of said sale pay all costs * * *; and apply the residue thereof toward the payment of said indebtedness * * * rendering the surplus, if any, unto said Mortgagor * * *'

It is not denied that appellee was delinquent in her payments at the time of the taking, and she does not challenge the right of appellant to repossess the automobile under the above provisions of the chattel mortgage provided the repossession had been made in a proper manner. She does insist however that the retaking in this instance was not proper but that it was wrongful, and that the evidence so shows. Appellant takes the opposite view, and that constitutes the prime issue presented on this appeal.

Before reaching the prime issue it is necessary to dispose of two other questions that have arisen.

First. It is stated by appellant that a mortgagee (in a chattel mortgage such as this) has the same right under our decisions to repossess without legal process that the seller has under a conditional sales contract, citing White River Production Credit Association v. Fears, 213 Ark. 75, 209 S.W.2d 294, and Starling v. Hamner, 185 Ark. 930, 50 S.W.2d 612. We find that most of our decisions in this connection have dealt with conditional sales contracts, and we do not find that the above cited cases are sufficiently clear and in point to fully sustain appellant's contention. However, we deem it unnecessary to decide this particular issue one way or the other in view of the conclusions hereafter reached. Rather than to do so, without the benefit of proper briefing we choose to give appellant the benefit of any doubt and treat the chattel mortgage as if it were a conditional sales contract.

Second. Appellee first takes the position that this court should not re-examine the sufficiency of the evidence to sustain the judgment of the trial court because appellant did not make a motion for a directed verdict at the close of all of the testimony. To sustain this point appellee cites Hot Springs Street Railway Company v. Hill, 198 Ark. 319, 128 S.W.2d 369 and Dinet v. Rapid City, 8 Cir., 222 F. 497. Again we by-pass a full discussion and definite determination of this rule as it applies to our procedure for the reason that we think it would have no application in this particular case where the trial court acted both as judge and jury. In arguing the case before the trial court it would have been a useless gesture for appellant to have filed a motion asking the judge to direct himself to direct a verdict in its favor. The question of the sufficiency of the evidence was squarely before the trial judge and he could have in no way been misled.

The prime issue is whether there is substantial evidence to support the trial court's finding to the effect that appellant's acts in repossessing the automobile amounted to conversion. The applicable rule (briefly stated) as set forth in many of our decisions, appears to be that there is a conversion if force or threats of force are used to secure possession of the automobile.

In this case the act of taking the automobile is conceded. The circumstances of the taking are not materially in dispute, and in setting them out we view them in the light most favorable to sustain the judgment. Appellant's agent went to appellee's home and found the automobile in the driveway at a time when appellee was in the bathtub. While the agent was attempting to attach a towbar to the car appellee called her attorney who told her the agent had no right to take the car without legal process. She so informed her husband and he in turn told the agent that they objected to him taking the car. The agent disregarded these objections and, without consulting appelle...