Monarch Buick Co. v. Kennedy

• Decision Date: 13 September 1965
• Docket Number: No. 2,No. 20035,20035,2
• Parties: MONARCH BUICK COMPANY, Incorporated, Appellant, v. Coleman KENNEDY, Appellee
• Court: Indiana Appellate Court

Page 922

209 N.E.2d 922

138 Ind.App. 1

MONARCH BUICK COMPANY, Incorporated, Appellant, v. Coleman KENNEDY, Appellee.

No. 20035.

Appellate Court of Indiana, Division No. 2.

Sept. 13, 1965.

Rehearing Denied Oct. 26, 1965.

[138 INDAPP 2]

Joseph M. Shannon, Indianapolis, for appellant.

Hall & Zeiher, Indianapolis, for appellee.

HUNTER, Judge.

This is an appeal from an action in conversion, wherein plaintiff-appellee alleged that defendant-appellant tortiously converted the former's automobile. Appellee also prayed for exemplary damages. A trial by jury resulted in a verdict and judgment for appellee in the amount of Five Thousand ($5,000) Dollars. Appellant's assigned errors will be considered separately as warranted by his arguments on said errors.

Appellant urges that the trial court erred in denying his motion to make appellee's complaint more specific. Appellant cites no authority for this proposition. We hold that such asserted error is waived. Supreme Court Rule 2-17(e); Wright v. State (1958), 237 Ind. 593, 595, 147 N.E.2d 551; Himelstein Bros., Inc. v. Texas Co. (1955), 125 Ind.App. 448, 125 N.E.2d 820.

Another error relied upon is the allegation that the trial court erred in overruling appellant's motion to strike that part of appellee's amended complaint which prays for exemplary damages. The only argument advanced in support of this proposition is the proposition that punitive damages are not allowed in an action for conversion. The 'authority' given for this statement is as follows:

'Appellant has been unable to find a single case wherein punitive damages were allowed for anything less than false misrepresentation'. (Appellant's brief, pp. 47-48)

Appellant has not indicated in his argument why exemplary damages would not be allowable in actions in conversion in the [138 INDAPP 3] proper case. Nor has it pointed to any authority, in this or other jurisdictions, directly supporting this proposition. Notwithstanding appellant's weakness in his argument, we will answer his question so far as warranted.

[2, 3] The Indiana Supreme Court has stated that where '* * * malice or oppression weigh in the controversy, exemplary or vindictive damages may be assessed'. Louisville, New Albany and Chicago Railway Company v. Wolfe (1891), 128 Ind. 347, 352-353, 27 N.E. 606, 607. Fraud of the defendant in his actions to-wards the plaintiff is also an element. Murphy Auto Sales, Inc. et al. v. Coomer et al. (1953), 123 Ind.App. 709, 112 N.E.2d 589. The general rule concerning whether exemplary damages are allowable in actions in conversion is found in 89 C.J.S. Trover & Conversion Sec. 148b wherein it is stated:

'It is proper to submit to the jury the question of exemplary damages where the facts authorize a finding of malicious or reckless and wanton conversion.'

Appellee herein alleged facts which would allow a prayer for exemplary damages: the complaint alleged that appellant 'fraudulently violated the terms and conditions of said bailment'; and that according to representations of an agent of appellant, appellee's automobile was on bail to appellant when in fact it had already been possessed by another. Acts of fraud were generally alleged in that appellee stated in his complaint that appellant intentionally caused another to possess the car without notifying appellee of such action.

Although the only question adequately presented by appellant in this area is whether exemplary damages lie in an action for conversion, we also note that it is obvious from the above allegations, plus other general allegations in the complaint that in this cause, a prayer for punitive damages was entirely proper. Therefore, we hold that in an action in tortious conversion, punitive damages may be alleged and such were properly requested in the instant case.

[138 INDAPP 4] Appellant further urges that there was no evidence to support the finding of conversion in the instant case. Tortious conversion is:

'The exercise of dominion over personal property to the exclusion and in defiance of the rights of the owner or withholding it from his lawful possession under a claim of title inconsistent with the owner's (title), * * *.' Hardy v. Heeter (1951), 120 Ind.App. 711, 717, 96 N.E.2d 682, 684, citing Prudential Ins. Co. of America v. Thatcher (1937), 104 Ind.App. 14, 20, 4 N.E.2d 574.

It has been held in Indiana that a bailee may be guilty of conversion. Cleveland, etc., R. Co. v. Wright (1900), 25 Ind.App. 525, 58 N.E. 559. In the case at bar, the evidence indicates that appellant was a bailee for hire, in fact requesting of appellee that the automobile be brought into appellant's place of business to correct a defect in same. Appellee had recently purchased the vehicle from appellant and the evidence shows that it was a 'lemon'. An agent told appellee that he would be notified when the car was repaired. However, the agent notified a General Motors Acceptance Corporation official by telephone to take possession of the car because it had been abandoned. In fact it had not been abandoned. Appellant had been paid for the automobile and the evidence indicates that by informing G.M.A.C. as it did, appellant's motive was to 'take the easy way out' because it could not repair the car. Appellant otherwise had no interest in G.M.A.C. repossessing such. We cannot conclude as a matter of law that appellant's actions do not constitute tortious conversion. These acts are '[t]he exercise of dominion over personal property to the exclusion and in defiance of the...