Parker v. Sutton

• Decision Date: 22 September 1971
• Docket Number: 8 Div. 51
• Citation: 254 So.2d 425,47 Ala.App. 352
• Parties: Guy F. PARKER and E. F. Mauldin, et al. v. Robert SUTTON and Coy Sutton.
• Court: Alabama Court of Civil Appeals

Page 425

254 So.2d 425

47 Ala.App. 352

Guy F. PARKER and E. F. Mauldin, et al. v. Robert SUTTON and Coy Sutton.

8 Div. 51.

Court of Civil Appeals of Alabama.

Sept. 22, 1971.

Rehearing Denied Oct. 13, 1971.

Calvin, Gilchrist & Murphree, Decatur, for appellants E. F. Mauldin and Preuit and Mauldin, a partnership

Harris, Harris, Shinn & Harris, Decatur, for appellant Guy Parker.

Bedford & Bedford, Russellville, Speake & Speake, Moulton, for appellees.

WRIGHT, Judge.

Suit was brought by Robert and Coy Sutton against E. F. Mauldin, Guy Parker and Preuit and Mauldin, a partnership. The suit contained three counts. Count I was in detinue. Count II in trespass for a wrongful taking, and Count III was for conversion of personal property. The property involved and referred to in all counts was a 1962 Model 414 International two-row cotton picker. Upon presentation of plaintiffs' case, without any evidence presented by any of the defendants, the cause was submitted to the jury. Among written charges requested by the plaintiff and given by the court, was the affirmative charge with hypothesis. Verdict of the jury was general and awarded plaintiffs damages in the amount of $10,000 against the defendants. Motion for a new trial was made and denied.

Appeal was filed by all defendants except Guy Parker, who subsequently joined in the appeal and assigned separate error as allowed and provided for in Title 7, Section 804, Code of Alabama 1940 (recompiled 1958). Most of the errors assigned by the separate appellants are identical. We shall discuss those initially.

Appellants contend that the verdict of the jury is excessive. There appears little doubt that the major portion of the award represents punitive damages against the appellants. There is equally little or no question but that the verdict of the jury was upon one or the other of Counts II or III. The form of the verdict certainly could not be directed to the detinue count as it did not refer to the property sued for nor to its alternate value or damage for detention. Thus we must consider the verdict as referring to either the trespass or the conversion count. Which of these counts the verdict may be considered as applicable to is of no consequence so far as we can see. Our examination of the evidence convinces us that it supports either count. Further, a verdict under either count, dependent upon the state of the evidence, may include punitive damages. Roan v. Smith, 272 Ala. 538, 133 So.2d 224; Carolina Casualty Ins. Co. v. Tisdale, 46 Ala.App. 50, 237 So.2d 855 (cert. denied.)

Before further discussing the award of damages, a better understanding of our ruling will be possible by a brief re sume of the events giving rise to this suit.

During the first week in September 1963, appellees visited the place of business of appellants, E. F. Mauldin or Preuit and Mauldin. This business, apparently operated by Mauldin, sold mechanical cotton pickers. It appears there had been some previous discussion concerning the purchase by appellees of a new picker. This had not been possible because financing could not be arranged. There was on the premises of Preuit and Mauldin a used picker which was either owned or had previously been owned by appellant Parker. This picker was offered to appellees for $11,750.

The payment for this picker, after a $2,000 down payment, was to be made in payments over the next two years. Appellees wre directed to appellant Parker for information concerning the condition of the picker.

After trying out the picker, appellees paid the down payment with borrowed money and signed a conditional sales contract for the balance. This contract contained the schedule and amount of future payments and the amount of the total sales price. The first payment was to be due November 1, 1963.

Two or three weeks after the sale of the picker, appellant Mauldin and an employee, Neal, appeared in the field where the picker was being operated and informed appellees that a mistake had been made in the contract amounting to some $2,000. It would be necessary for appellees to sign a new contract or pay immediately an additional $2,000. Appellees refused to comply. After other approaches for the same purpose, Mauldin and appellant Parker, on the 7th of October 1963, appeared at a cotton gin where appellees were and one or both informed appellees that the new contract would have to be signed or they would pick up the picker. They were again refused. Later in the day these appellants came to a field where the picker was being used and informed one of the appellees they had to take it unless the contract was signed. Appellee told them not to take the picker and went to another field to discuss the matter with his brother. While he was gone appellant Mauldin stopped the operator of the picker, directed appellees' employee to get off, mounted it and drove it away. Appellant Parker was present with Mauldin when this occurred. Appellees saw the cotton picker no more. There was no return or offer to return the $2,000 down payment. Appellees had picked approximately 70 bales of cotton with the picker for which they were paid $30 per bale. The evidence tended to show that 300 bales a season could be picked by such a picker.

The measure of compensatory damages for conversion of a mortgaged chattel by a mortgagee is the value of the equity or special property of the mortgagor. Such value amounts to the difference between the reasonable fair market value and the balance due on the mortgage debt at the time of conversion, together with interest from the date of conversion. Armstrong v. Farrell, 267 Ala. 606, 104 So.2d 309.

To such compensatory damages the jury may add punitive damages if the trespass or conversion was willful, fraudulent, done in known violation of law or attended with circumstance of malice, insult or disregard of the rights or interest of the mortgagor. Roan v. Smith, supra; Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371.

Without becoming involved in calculations as to a division of the verdict into compensatory and punitive damages, it clearly appears the verdict involved more than a compensatory award. We think the evidence included facts, with reasonable inferences possible to be drawn therefrom, to fully support an award of punitive damages. The amount of such damages is a matter for the discretion of the jury and will not be set aside on appeal unless it is so great, unjust and grossly excessive as to indicate bias and undue prejudice by the jury. Mercury Freight Lines, Inc. v. Pharo, 264 Ala. 322, 87 So.2d 642. After careful consideration of the evidence and of the fact that a motion for new trial containing the ground of excessiveness of the verdict was denied by the trial court, we cannot hold contrary to the court below. The verdict of the jury is supported by the evidence. We cannot say it is excessive. Austin v. Tennessee Biscuit Co., 255 Ala. 573, 52 So.2d 190.

Assignment of error 2 is directed at the overruling of a motion for a mistrial made by appellants' attorney during the trial. The motion was made following an exchange between counsel, during which counsel for appellees commented upon the On the first day of trial a witness had been excused from the rule at the request of appellants' counsel because appellant Mauldin was not present in court. Apparently counsel for appellees did not wish the witness to remain in the courtroom. On the second day of the trial the presence of the witness at the counsel table was observed, objected to by counsel for appellees and motion made that he be placed under the rule. Counsel for appellants informed the court that Mauldin would be present in a few minutes. The following remark was then made by counsel for appellees: 'I mean he hasn't seen fit to show his presence and I don't see why he's got a right to come in court. He has completely defied all bounds of reason.' After this remark, motion for mistrial was made and was overruled.

continued absence of appellant Mauldin from the courtroom.

We are required by this assignment of error to examine the remarks complained of, the scene in the courtroom at the time they were made, and the entire record for the purpose of determining if substantial prejudice resulted to appellants therefrom. St. Clair Co. v. Martin, 273 Ala. 302, 139 So.2d 617. The trial court had to make a similar determination at the time of the motion for mistrial and on the motion for new trial since the matter was one of the grounds of the latter. On both occasions the trial court found that no prejudice resulted to appellants. Our consideration of the same matter must be accompanied by the presumption that the trial court was in a much better position to observe the effect of the remarks objected to upon the jury than is this Court. Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391. It is our considered opinion that there is no indication from the entire record that the occurrence of this particular statement by counsel prejudicially affected the jury's verdict. Birmingham Electric Co. v. Perkins, 249 Ala. 426, 31 So.2d 640.

Though the court did not immediately inform the jury they should not consider nor be influenced by these particular remarks of counsel, admonition not to consider remarks and arguments of counsel as evidence was included in the oral charge.

Assignment of error 3 condemns the giving of the following written charge at the request of plaintiffs: 'The court charges the jury that in the assessment of punitive damages which may be awarded under Count II of the complaint, the jury may give such punishment as in their judgment the evidence authorizes not in excess of the sum sued for in the plaintiffs' complaint.'

Substantially the same charge...