Mitzner v. Hyman

• Decision Date: 08 July 1985
• Docket Number: No. 69849,69849
• Citation: 333 S.E.2d 182,175 Ga.App. 311
• Parties: MITZNER v. HYMAN et al.
• Court: Georgia Court of Appeals

Page 182

333 S.E.2d 182

175 Ga.App. 311

MITZNER v. HYMAN et al.

No. 69849.

Court of Appeals of Georgia.

July 8, 1985.

Robert S. Devins, Atlanta, for appellant.

Kenneth M. Sissel, Warren D. Davis, John J. Strauss, Atlanta, for appellees.

BEASLEY, Judge.

Sometime before July 18, 1983, the appellant, Sylvia Mitzner, left her 52-year-old diamond ring with the appellees, Gold Bazaar Retail, Inc., and Steven Hyman, to have the ring reset. On July 18 the ring was stolen, presumably by an unknown third party who had entered the store posing as a prospective customer. The merchants immediately reported the theft to the local police and informed the ring owner. She claimed by deposition that Hyman had explained to her daughter that the theft occurred shortly after he had shown the ring to the unknown party as an example of a setting. Several months later, Ms. Mitzner formally demanded return of the ring. The merchants, having no knowledge of its whereabouts after the theft, were unable to return it.

On February 22, 1984, the ring owner commenced this action in trover, seeking actual damages of $15,000 for the fair market value of the ring, $50,000 punitive damages for refusing to return the jewelry, and $100,000 vindictive damages for her wounded feelings; alternatively, she alleged conversion and sought $15,000 in actual damages. She moved (1) for partial summary judgment on the issue of liability, (2) for an order compelling production of the merchants' entire financial records dating back to January 1983, and (3) for appointment of a receiver. The merchants also moved for summary judgment. This appeal follows from the trial court's denial of all of the plaintiff's motions and grant of summary judgment for the defendants. Held:

1. The ring owner sought recovery basically under a theory of trover, the gist of which is conversion. Brooks v. Fincher, 150 Ga.App. 201, 257 S.E.2d 326 (1979); McDaniel v. White, 140 Ga.App. 118, 230 S.E.2d 500 (1976). Because the merchants' possession of the ring was lawful, the ring owner had to prove either actual conversion or a demand for return of the property and the failure or refusal to redeliver. Wood v. Sanders, 87 Ga.App. 84, 73 S.E.2d 55 (1952); McDaniel v. White, supra.

Conversion consists of " 'an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.' Southern Express Co. v. Sinclair, 130 Ga. 372, 373 (60 SE 849)." Wood v. Frank Graham Co., 91 Ga.App. 621, 622, 86 S.E.2d 691 (1955).

" 'Any distinct act of dominion wrongfully asserted over another's property in denial of his right, or inconsistent with it, is a conversion. It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner's right, or in a manner inconsistent with it. It is in law a conversion whether it be for his own or any other's use....' " James v. Newman, 73 Ga.App. 79, 80 (3), 35 S.E.2d 581 (1945). "Conversion involves the unauthorized assumption and exercise of right of ownership over personalty of another, contrary to the owner's rights. [cit.]." Pelletier v. Schultz, 157 Ga.App. 64, 65, 276 S.E.2d 118 (1981). See generally 28 EGL "Trover & Conversion."

There is some evidence that defendants converted the diamond ring to their own use. They admit that the ring with the diamond was given to them for resetting. They admit also that they used it to show a prospective customer a particular setting; this use was not expressly authorized by the owner. In doing so, it can be argued that they exercised dominion over it contrary to the owner's interest and to the authority given. There is thus some evidence of a conversion from the apparently limited use which defendants had to a use of their own, which was inconsistent with plaintiff's interest in having the ring worked on in the security of a workroom. Unfortunately, the control which defendants exercised over it was lost when a thief walked off with it, and consequently defendants became unable to return the ring to plaintiff. There is a jury question as to whether the authority by which defendants had custody of the ring embraced the use to which they put it, which disputed fact would preclude grant of summary judgment to defendants since there was some evidence of actual conversion. " 'To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence [cits.] and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff.' [Cit.]" Waller v. Transworld Imports, 155 Ga.App. 438, 439, 271 S.E.2d 1 (1980), quoted and applied in Jordan v. Atlanta Neighborhood Housing Svc., 171 Ga.App. 467, 468 (1), 320 S.E.2d 215 (1984). On the other side of the coin, of course, plaintiff was not entitled to summary judgment, as she failed to meet "the burden of establishing the absence or non-existence of any defense raised by the defendant." City of Fayetteville v. Fayette County, 171 Ga.App. 13, 14 (2), 318 S.E.2d 757 (1984). She failed to show the absence of any genuine issue of material fact which, under applicable principles of substantive law, entitled her to a judgment as a matter of law. Raven v. Dodd's Auto Sales, 117 Ga.App. 416 (1), 160 S.E.2d 633 (1968). Thus the court correctly denied her motion.

2. The plaintiff's motion to compel discovery concerned the defendants' refusal to produce all of their financial records dating back to January 1983. The request for production required them to present the materials at the office of the plaintiff's attorney in Fulton County, notwithstanding the facts that at least the corporate defendant was a DeKalb County resident, the office of the defendants' attorney was in DeKalb County, and the action was commenced in DeKalb County. The matters sought by the plaintiff, however, were such as are usually privileged except in post-judgment discovery proceedings geared towards uncovering assets to satisfy the judgment. OCGA § 24-9-27(b), generally; Kushner v. Mascho, 143 Ga.App. 801, 240 S.E.2d 290 (1977). Nevertheless, the appellant contends that these matters are discoverable in this case because (1) the financial records might disclose some transaction where the appellees had in fact sold the ring, and (2) such evidence of net worth is relevant where vindictive damages are sought.

We conclude that the trial court properly denied the plaintiff's motion to compel. Considering the rather unreasonable request for the defendants to take all the financial records to the plaintiff's attorney, as well as the purely conjectural basis for making the request, i.e., that the records might disclose a conversion, it appears that the request for production was more calculated to burden the appellees than reasonably calculated to lead to admissible evidence. Further, although the appellant correctly notes that evidence of a defendant's worldly circumstances is admissible where vindictive damages are appropriate, vindictive damages are available only where the entire injury is to the "peace, happiness, or feelings of the plaintiff...." OCGA § 51-12-6; Williamson v. Weeks, 142 Ga.App. 149, 235 S.E.2d 587 (1977). Because the appellant's loss was not limited to wounded feelings only, the requested matters were not subject to discovery on that basis.

3. There was no call for the appointment of a receiver, and the court did not err in this regard.

Judgment affirmed in part and reversed in part.

BANKE, C.J., McMURRAY, P.J., and BENHAM, J., concur.

BIRDSONG, P.J., and CARLEY and SOGNIER, JJ., concur in part and dissent in part.

DEEN, P.J., and POPE, J., dissent.

SOGNIER, Judge, dissenting in part.

I concur in the judgment only of the reversal of the grant of summary judgment against appellant. I dissent to the majority's failure to grant summary judgment for the appellant against appellee, Gold Bazaar. Appellant's delivery of her ring to appellees and appellees' acceptance of the ring as alleged in Count 1 of her verified petition constituted a bailment. See OCGA § 44-12-40; Davidson v. Ramsby, 133 Ga.App. 128, 131 (5), 210 S.E.2d 245 (1974). No disclaimer or abandonment by appellant of her negligent bailment theory of recovery is shown by the record. As bailees, appellees were under a duty to exercise care and diligence to protect appellant's ring and to keep it safe. OCGA § 44-12-43. Once a bailor has proved loss or damage to property while it is under the control of the bailee, (i.e., the bailee's failure to return the property or the return of property in a damaged condition), there is a presumption that the bailee was negligent. OCGA § 44-12-44. To rebut this evidentiary presumption the bailee must negate every inference of negligence on his part, as the presumption in itself is sufficient to support a verdict in favor of the bailor. Camp v. T.E. Cline, Inc., 141 Ga.App. 328, 329 (1), 233 S.E.2d 280 (1977); Red Cross Laundry v. Tuten, 31 Ga.App. 689 (2, 3), 121 S.E. 865 (1924).

In this case it is undisputed that the ring that appellant entrusted to appellee Gold Bazaar Retail, Inc. (Gold Bazaar) was not returned to her. Therefore the evidentiary presumption in her favor under OCGA § 44-12-44 applies and appellees were required to negate every inference of...