Newman v. Twin City State Bank
Decision Date | 29 March 1983 |
Docket Number | No. WD,WD |
Citation | 649 S.W.2d 524 |
Parties | Jesse NEWMAN, Appellant, v. TWIN CITY STATE BANK, et al., Respondents. 33171. |
Court | Missouri Court of Appeals |
Bruce E. Strauss of Shockley, Reid & Koger, Kansas City, for appellant.
William L. Turner, John B. Gage II & Ralph E. Lewis, II, of Gage & Tucker, Kansas City, for respondents.
Before PRITCHARD, P.J., and MANFORD and NUGENT, JJ.
This is an action for damages in multiple counts upon a replevin bond and for intentional tort. The trial court directed a verdict for the original defendant and third party defendant at the close of plaintiff's (Newman's) evidence. The judgment is affirmed.
Before setting forth the charged errors and the pertinent facts, the parties are identified. Appellant, Jessie Newman, was, at trial, the original plaintiff and is hereinafter referred to as Newman. Twin City State Bank, respondent, was the original defendant and hereinafter referred to as Twin City. Booth's Tow Service, Inc., respondent, at trial was impleaded as a third party defendant by Twin City and hereinafter is referred to as Booth.
On this appeal, Newman charges that the trial court erred in sustaining the motions of both respondents for a directed verdict at the close of his evidence because (1) his evidence showed a breach of the conditions of the replevin bond upon the failure of Twin City to prosecute the replevin action with effect, and (2) his evidence was sufficient to reveal a trespass against his personal property.
The record reveals that Newman executed (on February 16, 1978) an installment note payable to Twin City. Security for payment consisted of two motor vehicles owned by Newman. One vehicle was a 1966 Mark X Jaguar and the other was a 1973 Pontiac.
Newman defaulted in his payments. After a few months, Twin City filed a replevin action, under bond, in the Associate Circuit Division of the 16th Judicial Circuit, on January 20, 1979. An order of delivery in replevin was issued by the Associate Circuit Judge. This order directed the Court Administrator to deliver both vehicles to Twin City. At approximately 6:00 p.m. on January 24, 1979, a deputy from the office of the Court Administrator, along with the attorney for Twin City, appeared at Newman's residence. The replevin order was served on Newman. Newman was not fully cooperative. The tow service originally requested by Twin City did not appear and Booth was requested to tow the vehicles. The evidence reveals that the process of taking possession of the vehicles from Newman spanned some two to three hours. During this period, Newman, by phone, conversed with his attorney and refused to give over the keys to the vehicles. At one point, the deputy hinted at the possibility of ordering a "paddy wagon".
The vehicles were ultimately towed from Newman's garage. The evidence is controverted over the towing and all following events.
Newman testified that he was concerned over the towing procedures of the vehicle, particularly the Jaguar. He contended that the Jaguar was in "concourse condition" and had never "been wet by raindrop or snowflake." He further claimed that at the time of repossession, the Jaguar was worth $15,000. In addition, he claimed (at the time of repossession) that the Pontiac was worth $1,800. Newman further stated that he informed counsel for Twin City that the Jaguar should be stored and claimed that counsel informed him (Newman) it would be stored inside. Newman further claimed that he had a discussion with one of the two tow drivers and Twin City's counsel regarding the manner of towing the Jaguar. Newman stated that he advised the two the Jaguar should be towed with a sling. According to Newman, one of the two drivers stated he knew how to tow the Jaguar and towed the vehicle with a tow bar from the rear.
By agreement between the parties, counsel for Twin City was permitted to testify out of order. He stated that while at Newman's residence, he in no way attempted to advise the tow drivers on the manner of towing. He testified that he had no knowledge of towing procedures and felt he had no right to advise the tow driver in the matter.
Newman further testified that some three weeks following the repossession, he observed the two vehicles in the Booth Tow lot covered by snow. Newman contacted a representative of Twin City, and the two went to Booth's lot. The Jaguar was observed and Newman claimed that he pointed out rear bumper damage, the break in a rubber bushing and paint damage in the area of the rear bumper. The Jaguar was transferred to an inside garage in downtown Kansas City. Newman drove the Jaguar to the inside garage.
The replevin action was called up for disposition four times in the Associate Circuit Court. Negotiations between Newman (through his counsel) and Twin City (through its counsel) were in process. On three of the four court dates, Newman, through counsel, requested that the matter be continued. These continuances were granted. At no time did Newman present any claim for damages.
Ultimately, Newman entered into an agreement with a friend of his which provided that he (Newman) would sell the Jaguar to the friend for $5,000 and repurchase the Jaguar from the friend for $6,000 within 90 days. An amendment to this written agreement reduced the repurchase period from 90 days to 26 days. Newman secured the $5,000. He paid this sum (less $500 returned to him by Twin City) to Twin City in full satisfaction of the installment note, costs, and fees. Title to the Jaguar was transferred to Newman's friend. Newman never repurchased the Jaguar, and at the time of trial of the instant matter, did not own the Jaguar. Newman regained his Pontiac.
Newman testified that when he retrieved his Pontiac, it would not start and he discovered the alternator was missing. In addition, he claimed that the vehicle originally had 15-inch tires with only 8,000 miles on them, but when retrieved, these tires had been replaced by worn 14-inch tires. Newman testified that the value of the Pontiac, when repossessed, was $1,800, and when recovered, was $400. He further testified that the value of the Jaguar, when repossessed, was $15,000, and when recovered, was $5,000. Newman testified that he did not know who caused the damage or how it was caused.
On June 8, 1979, Twin City dismissed the replevin suit with prejudice. On July 13, 1979, Newman filed the present action. On September 16, 1981, this cause was before the court, with a jury, for trial. At the close of Newman's evidence, the trial court directed a verdict for Twin City upon Newman's claim and for Booth on Twin City's claim against Booth. This appeal followed.
Newman did not plead any claim against Booth, nor did he allege that Booth was the agent of Twin City. Newman seeks recovery against Twin City and its surety on the replevin bond (St. Paul Fire and Marine Insurance Company) for damages to his vehicles.
On this appeal, Newman (under his point ), contends that he is entitled to pursue this subsequent claim for damage although he did not present any claim for damages in the replevin action.
Twin City defends upon the premise that Newman, at trial, failed to prove a breach of one or both of two requirements imposed upon a replevin plaintiff and its surety and hence is barred from proceeding with this action.
In replevin actions, a bond filed in support thereof must conform to Rule 99.06. That rule provides:
Stated in more simple language, the above rule requires a replevin plaintiff, subject to the court's approval, to post a bond binding the replevin plaintiff to double the property value to protect the replevin defendant in case of the occurrence of one of the following:
(a) the replevin plaintiff fails or refuses to prosecute the replevin action without delay and effect; and
(b) when redelivery of the property to the replevin defendant is ordered by the court and damage to the property has resulted.
There is no dispute between the parties that the replevin bond herein was in all respects proper and filed in conformity to the rule. There is no dispute that the bond was approved by the court. There is also no contention that redelivery was ever ordered by the court ( [b] above). The record does not reveal any redelivery order by this court.
Newman charges that Twin City failed to prosecute its replevin action without delay and with effect. From this posture, Newman thus concludes that he is entitled to pursue this subsequent claim for damages. Newman reaches the final challenge to the trial court's ruling by further arguing that his evidence made a case submissible to the jury.
Before addressing Newman's contentions under his point (1), it is noted that our courts have defined "prosecution with effect." That term was addressed in Spickard v. Continental Casualty Company, 288 Mo.App. 233, 64 S.W.2d 734, 736 (1933) wherein the court declared, "The provision that the plaintiff shall prosecute the action with effect means it will prosecute it successfully." See also Berghoff v. Heckwolf, 26 Mo. 511, 513 (1858).
As noted ( [a] above), there are two elements, i.e., "without delay and with effect." There is no real question upon this record that Twin City prosecuted its replevin action without delay. Once filed, the record shows that Twin City was...
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