McElroy v. Williams Bros. Motors, Inc.
| Decision Date | 26 September 1961 |
| Docket Number | No. 3,No. 39014,39014,3 |
| Citation | 104 Ga.App. 435,121 S.E.2d 917 |
| Parties | H. L. McELROY et al. v. WILLIAMS BROTHERS MOTORS, INC |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The amended motion for new trial was properly overruled on both the general grounds and the two special grounds.
Williams Brothers Motors, Inc., a Florida corporation (hereinafter referred to as plaintiff) instituted bail-trover proceedings against Hugh L. McElroy, Claude Sagon and Paul Sagon, doing business as Main Street Motors (hereinafter referred to as defendants), alleging that the defendants were in possession of a '1959 Buick, two door hardtop, Motor No. 6F6004069 of the value of $3,175.00 Dollars [sic], to which plaintiff claims title or a valuable interest therein.'
The plaintiff introduced testimony that plaintiff, a used car dealer located in Tampa, Florida, had purchased a 1959 Buick in February, 1959. On June 11, 1959, a customer representing himself as Marvin D. Cowles came into the plaintiff's place of business to complete a trade for the 1959 Buick which had been negotiated on the telephone. He traded a 1955 Mercury and agreed to pay a balance of $3,000 under a 'Retail Installment Contract,' which he signed. The person who had identified himself as Cowles drove off the lot with the Buick. Later, plaintiff's manager discovered that the Mercury was a stolen car and that the real Marvin Cowles was not the same man who had done business with plaintiff.
One Swint, the credit manager for plaintiff, testified that he came to Atlanta in July, 1959, and talked with two of the defendants, who admitted that they had acquired and resold the 1959 Buick. Swint's demand for the vehicle was refused.
Claude Sagon, one of the defendants, testified that the partnership had purchased the Buick through the Dixie Motors Auto Auction and had done so without notice of any other claim on the car and in good faith. He also testified that the Buick was subsequently sold by the defendants.
The judge, without the intervention of a jury, rendered judgment for the plaintiff. The defendants made a motion for new trial on the general grounds, and, by amendment, added two special grounds. The judge overruled the motion on all grounds and the defendants excepted.
Noah J. Stone, Hugh W. Stone, Atlanta, for plaintiff in error.
Jack Turoff, Rogers & Turoff, Atlanta, for defendants in error.
In a trover action, it is well settled that the issue is one of title (Tidwell v. Bush, 59 Ga.App. 471, 1 S.E.2d 457) and numerous other cases, and that the plaintiff must show either title in himself at the time of the suit, prior possession or the right of possession. Southern Ry. Co. v. Strozier & Waters, 10 Ga.App. 157(1), 73 S.E. 42.
The defendant urges his amended motion for new trial on the general grounds for two reasons, viz. (1) that the plaintiff never proved title in itself because while the automobile is described in the petition and the affidavit to obtain bail as having 'Motor No. 6F6004069,' the proof produced by plaintiff related to an automobile with 'Identification No. 6F6004069,' and (2) that the defendants were bona fide purchasers for value without notice because a 'Retail Installment Contract' held by plaintiff was not recorded. These theories necessarily enter into a consideration of the two special grounds of the amended motion and the special grounds will be considered first.
(1) Plaintiff offered several documents to prove its title. Exhibits 1 and 2 were a check and voucher for the purchase of six automobiles. The voucher, Exhibit 2, shows one of the cars purchased to have been a '1959 Buick 2 Dr. H/T 6 E6004069' (Emphasis added). Exhibit 3 was a Florida Motor Vehicle Registration and accompanying papers including a power of attorney signed by the registered owner to transfer the registration, a 'Motor Vehicle Certificate of Title' showing a first lien, a satisfaction of the first lien, and a 'Transfer of Title' to plaintiff of a 1959 Buick with 'Identification No. 6F6004069.' This exhibit was admitted into evidence without objection.
However, defendants did object to the introduction of Exhibit 2, the voucher, on the ground that the 'car described in the trover suit is not described in' Exhibit 2. This is special ground 2 of the amended motion for new trial.
A judge trying a case alone is not held to the strict rules as to the admission of evidence, and, presumptively able to 'sift the wheat from the chaff,' his judgment will not be reversed where there is any legal evidence to support the finding. Ward v. State, 26 Ga.App. 61, 105 S.E. 373; Bailey v. Holmes, 163 Ga. 272, 275, 136 S.E. 60; Loftis v. Allen Plumbing Co., 57 Ga.App. 847, 849, 197 S.E. 45; Camp v. Mapp, 95 Ga.App. 262, 263, 97 S.E.2d 623; Burton v. Campbell Coal Co., 95 Ga.App. 338, 340, 97 S.E.2d 924; Augusta Roofing & Metal Works, Inc. v. Clemmons, 97 Ga.App. 576, 577, 103 S.E.2d 583; American Cas. Co. v. State Farm Mut. Auto. Ins. Co., Ga.App., 121 S.E.2d 806. Assuming arguendo that Exhibit 2 was inadmissible for the reason given, the contents of Exhibit 3 as outlined above were sufficient proof of the plaintiff's title.
Furthermore, the evidence revealed that the practice in Florida was to refer to the serial number rather than the motor number as the 'identification number' and that the motor number as set out in the petition really referred to the 'identification number' or serial number of the Buick in question. This evidence and Exhibit 3 were admitted without objection. In the recent case of Harvey v. DeWeill, 102 Ga.App. 394, 116 S.E.2d 747, 755, it was said by Judge Bell that 'where evidence is admitted without objection, which supports...
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