Pelton v. General Motors Acceptance Corp.

• Decision Date: 26 January 1932
• Citation: 7 P.2d 263,139 Or. 198
• Parties: PELTON v. GENERAL MOTORS ACCEPTANCE CORPORATION. [*]
• Court: Oregon Supreme Court

7 P.2d 263

139 Or. 198

PELTON v. GENERAL MOTORS ACCEPTANCE CORPORATION. ^[*]

Supreme Court of Oregon

January 26, 1932

Department 2.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by M. H. Pelton against the General Motors Acceptance Corporation and others. From a judgment for plaintiff against defendant named, defendant named appeals.

Affirmed.

Nicholas Jaureguy, of Portland (Jaureguy & Tooze, of Portland, on the brief), for appellant.

Henry S. Westbrook, of Portland, for respondent.

BELT J.

Plaintiff obtained a verdict and judgment against the General Motors Acceptance Corporation for $255 compensatory damages and $5,000 punitive damages, by reason of an alleged conversion of an automobile. A nonsuit was granted as to the defendant George H. Hoffmiller. No service was had on any of the other defendants. The defendant finance corporation appeals, assigning as error the denial of its motion for nonsuit and directed verdict; the submission to the jury of the question of punitive damages; and the admission of certain evidence.

In view of the assignments of error, the statement of facts will be in the light most favorable to plaintiff. In December, 1930 the plaintiff, under the name of John W. Clarkson, purchased the automobile in controversy from the Howard Automobile Company. When the latter company quit business, the conditional sales contract under which the car was purchased was assigned, on the 18th day of July, 1930, to the General Motors Acceptance Corporation. In July and August, 1930 plaintiff defaulted in each of his monthly payments of $67. Thereupon the defendant, pursuant to the terms of its contract with the Fireman's Fund Insurance Company notified the latter on August 20, 1930, as to such default, and directed it to repossess the car. In this notice it was stated that Bert G. Haynes, assistant secretary and credit manager, was authorized in the repossession of the automobile "to take such action in the premises as he may deem necessary." Pursuant to the authorization of the defendant company, the Fireman's Fund Insurance Company, through its agent, George H. Hoffmiller, at about 2 o'clock in the morning of September 5, 1930, located and took possession of the automobile parked in front of the Loraine Hotel where the plaintiff lived in the city of Portland. On the afternoon of September 3, 1930, the plaintiff, through his son, had appeared at the office of the General Motors Acceptance Corporation and made the two payments in default. On the day after the company had accepted these payments, its "credit man," L. M. Broadbent, who had supervision of the contract in question, undertook, as he says, to notify Hoffmiller of the payments made, but was unable to do so as the latter had gone to Corvallis.

The plaintiff thus gives his version of the repossession of the automobile by Hoffmiller: "Well, I was asleep in bed when I was called on the phone and said they were taking my car; and I went downstairs across the street and the car was hitched on behind a tow car ready to be pulled off, and I went across the street and I met Mr. Hoffmiller, and Mr. Hoffmiller said he had a paper to take the car, and I asked what for, and he said for nonpayment, and I said, 'I made the payment for I have the receipt.' He said 'That can't be possible or they wouldn't order the car taken if you have a receipt for the payment.' I said, 'I have the receipt but I haven't it with me, but drive over to my son's place and he will give you the receipt, for he has it."'

Hoffmiller did not go with the plaintiff to see the receipts, but took the car to a garage for storage. En route to the garage, Hoffmiller suggested that the plaintiff call some member of the finance corporation on the telephone concerning his claim of payment, as he was willing to surrender the car, if instructed to do so. Upon arrival at the garage at about 2:30 in the morning, Hoffmiller dialed Broadbent and stood by while the plaintiff talked to him. There is a dispute as to certain parts of this conversation. In reference thereto, the plaintiff testified: "I told him I had made the payments and that Mr. Hoffmiller had taken the car, and he said that didn't make any difference, they demanded the full payment of the car before they would give it back to me."

Hoffmiller, in response to the question, "What part of the conversation did you hear; what did you hear Pelton say and what did you hear stated over the phone, if anything?" testified: "Mr. Pelton stated he had made the payments and demanded that Mr. Broadbent would instruct me to return the car to him. Mr. Pelton had the receiver a short distance from his ear, and I did hear whoever was on the other end of the line say, 'No' several times to him."

Broadbent testified concerning this conversation as follows: "It was right around 2 a. m., the morning of the 5th. My mother called me; I was in bed, asleep; she called me and said I was wanted on the phone. When I answered the phone, the party on the other end said it was Mr. Pelton talking. I said, 'Who?' He said, 'Mr. Clarkson is the name on the contract.' I told him I recalled the name. He then informed me that Mr. Hoffmiller, of the Fireman's Fund Insurance Company, had repossessed his automobile and he demanded its return by 8 o'clock the following morning or he would take court action. He also informed me that he had made two payments to our office, as I understood the day previous. However, being aroused in the middle of the night, I naturally assumed it was the day of the 4th, instead of the early morning of the 5th. Consequently, his saying the day previous, would have meant the 3rd. I told him due to the fact that I had between 2400 and 2500 accounts in the office I had no recollection of it, I had no records before me, I was at home, and if he would come down to our office the following morning, I would be glad to discuss the account with him."

On the morning of the day the car was repossessed, Hoffmiller went to the office of the General Motors Acceptance Corporation to report and to leave the storage check for plaintiff's car, which the finance company refused to accept. Hoffmiller then returned to his office, and forwarded the storage check to the defendant by registered mail whereupon the latter mailed it back to Hoffmiller, who advised the finance company that he held it subject to its order. From the manner in which this "hot" storage check was juggled back and forth, it is apparent that neither the finance corporation nor the insurance company wanted this automobile which was surreptitiously taken in the wee hours of the morning while the owner was asleep. Broadbent testified that, upon checking the records in his office the morning of the 5th, it was found that $134, the entire sum in default, had been paid on September 3d. However, he...