Panola Motor Co. v. Corbin, 15383
| Decision Date | 21 November 1952 |
| Docket Number | No. 15383,15383 |
| Citation | 253 S.W.2d 688 |
| Parties | PANOLA MOTOR CO. et al. v. CORBIN. |
| Court | Texas Court of Appeals |
Tom Bankhead, of Carthage, for appellant.
Fred Whitaker and Ruff Wall, both of Carthage, for appellee.
Appellee Corbin, on June 20, 1951, purchased from appellant, Panola Motor Company, a used pick-up truck, paying $600 in cash and giving a note for the balance of $975, payable to appellant, Panola Credit Company, and secured by chattel mortgage. On July 12, while the truck was on the premises of Panola Motor Company, where appellee had taken it for repairs, it was 'repossessed' by the Credit Company and parked on the used car lot belonging to Panola Motor Company.
Appellee brought this suit against both the Motor Company and the Credit Company for damages, actual and exemplary, maintaining that the defendants and each of them had wrongfully converted the vehicle.
The case was tried to a jury and judgment entered for appellee against both defendants for actual damages in the sum of $1,425, jointly and severally, and against the Panola Credit Company for the sum of $1,000 exemplary damages.
Appellants bring forward the following points of error: (1) The undisputed proof established a violation of the terms of the chattel mortgage agreement which gave the Credit Company the right to repossess the vehicle; (2) that the Panola Motor Company should have been granted an instructed verdict under the testimony; (3) that no exemplary damages should have been allowed against the Credit Company; (4) that there was no competent evidence to prove any verbal agreement as to the true date of the first payment on the note; (5) that appellants' plea in abatement should have been sustained for the reason that the subsequent purchaser of the vehicle from the Credit Company was a necessary party; (6) that the court erred in overruling exceptions to certain allegatons in plaintiff's petition; (7) that the jury panel should have been dismissed by reason of certain prejudicial remarks made by counsel for appellee on the voir dire examination; and (8) certain objections to the court's charge should have been sustained.
Under their first point appellants maintain that the undisputed evidence shows that appellee had 'removed' the vehicle into an adjoining county and had 'let the vehicle out for hire,' in violation of the terms of the chattel mortgage agreement. There was no permanent removal of the vehicle out of the county. The appellee had merely driven the truck into the adjoining county on one or two occasions. In 14 C.J.S., Chattel Mortgages, § 258, the rule is stated: 'Even though there is an express provision in the mortgage prohibiting the removal of mortgaged property to another locality, where the mortgage is on such property as a wagon or motor vehicle, in view of the nature of the property, a temporary removal of the property for ordinary purposes is permissible.' See authorities cited.
The testimony did not show any rental of the vehicle but merely that the plaintiff was paid additional wages because he was using the truck on the job. It must have been contemplated by the parties that the 'pick-up truck' wouid be put to some kind of industrial or commercial use. The jury found that the vehicle had not been 'removed' from the county and that it had not been 'let out for hire.'
The judgment against the Panola Motor Company, in our opinion, must fail for lack of support in the evidence. Appellee seeks to hold the Motor Company in damages on the theory that it acted in collusion and conspired with the Credit Company to defraud appellee. There were no issues submitted to or findings by the jury to such effect. It is shown that the finance papers were prepared by an employee of the Motor Company; that a certain individual was a partner in both the Credit Company and the Motor Company; that most of the business done by the Credit Company was the financing of automobiles sold by the Motor Company; that the truck was on the premises of and in possession of the Motor Company at the time the Credit Company took charge of the vehicle, and apparently none of the employees of the Motor Company made any effort to prevent the truck from being taken. These facts, in our opinion, do not warrant judgment against the Motor...
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