Powell v. A. K. Brown Motor Co.

• Decision Date: 04 June 1942
• Docket Number: 15422.
• Parties: POWELL v. A. K. BROWN MOTOR CO.
• Court: South Carolina Supreme Court

20 S.E.2d 636

200 S.C. 75

POWELL v. A. K. BROWN MOTOR CO.

No. 15422.

Supreme Court of South Carolina

June 4, 1942

Willcox Hardee, Houck & Wallace, of Florence, for appellant.

C T. McDonald, of Florence, for respondent.

E. H HENDERSON, Acting Associate Justice.

On September 15, 1938, the respondent Liston Powell, took his automobile to the place of business of the A. K. Brown Motor Company, in the Town of Lake City, to have repairs made to a tire. The appellant, a corporation, was an automobile dealer and operated a shop where repairs to automobiles were made.

An hour later, at 12:30 o'clock the plaintiff returned to the shop to get his car, and found that it had been removed. About thirty minutes passed, according to the defendant's witnesses, when Willie James McGee, a colored employee of the appellant, drove up in the car. It was damaged as a result of being overheated. Upon inspection of the speedometer the plaintiff found that it had been driven about sixty miles.

McGee had been in the employ of the defendant for two years. He was not a mechanic. The defendant said that his duties were mainly to wash cars, though he could repair tires.

The defendant at once agreed to repair the automobile without cost to the plaintiff, and started upon the work the same afternoon. Next morning the parties came to a disagreement as to what should be done to restore the car to a good condition. The defendant contended that the work it was doing was just what was needed; the plaintiff claimed that the repairs were not being properly made, that Mr. Brown had promised to put in pistons, new valves and rings, and new spark plugs; and that in fact a new motor was required. As a result of this difference, plaintiff took his car and carried it away. The defendant continued to keep the colored man in its employment for a year.

Though the complaint also charged negligence, the plaintiff's case is based primarily upon conversion, and was tried on that theory. The chief defense of the appellant was that its servant without any authority and without its knowledge, acquiescence, or consent, took the automobile and drove it in furtherance of his own personal desires. The cause was tried before his Honor, Judge William H. Grimball, and a jury, at the Court of Common Pleas for Florence County. The defendant moved for a nonsuit and for the direction of a verdict. The trial Judge directed a verdict as to punitive damages, and in other respects the motions were refused. The jury found a verdict for the plaintiff for $150. A motion for a new trial was overruled.

In the appeal the principal contention of the defendant is that there was no conversion by it, for the reason that the only reasonable inference to be drawn from the testimony was that the colored employee, in taking the car, was at the time not acting within the scope of his employment; and that his Honor should have so held upon the motions to take the case from the jury; and should also have granted a new trial.

What constitutes conversion has been very clearly stated in a number of the decisions of this Court.

In Neel v. Clark, 193 S.C. 412, 8 S.E.2d 740, 742, it is said that conversion is "an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights."

It is stated in Young v. Corbitt Motor Truck Co., 148 S.C. 511, 146 S.E. 534, 542, that "conversion may arise either by a wrongful taking of the chattel or by some other illegal assumption of ownership by illegally using or misusing it, or by wrongful detention."

The case of Sherer-Gillett Co. v. Moore-Barnes Co., 114 S.C. 387, 103 S.E. 766, defines conversion as "the unlawful exercise of dominion over the property of another."

It is declared in Hutchinson v. Bobo, 17 S.C.L. 546, 1 Bailey 546, that "any use, or disposition, of a chattel, without the consent of the owner, and inconsistent with his rights, is a conversion."

And in Harris v. Saunders, 21 S.C.Eq. 370, note, 2 Strob.Eq. 370 note, the Court said that "a conversion seems to consist in any tortious act, by which the defendant deprives the plaintiff of his goods, either wholly or but for a time."

"An unauthorized use of the property by the bailee constitutes a conversion." 8 C. J.S., Bailments, § 31, p. 284.

Without doubt, if it is bound by the acts of McGee, the defendant is liable for conversion. 39 C.J. 1299; 3 C.J.S., Agency, § 255, p. 188; 8 C.J.S., Bailments, § 27, p. 274.

In considering the question it is important to bear in mind the relationship which existed between the plaintiff and the defendant, which was that of bailor and bailee. In such case there was an implied contractual obligation that the automobile which was placed with the defendant for repairs should not be used in an unauthorized manner.

In cases brought by third persons directly against the owners of automobiles for damages resulting from the negligence of the driver, the law is well settled, on the one hand, that a master is responsible for the torts of his servant, done within the scope of his employment. McFadden v. Anderson Co., 121 S.C. 407, 114 S.E. 402.

In such cases it is equally clear, on the other hand, that "when a servant completely departs from his work to accomplish some purpose of his own not connected with his employment, the relation of master and servant is thereby temporarily suspended and the master is not liable for his acts during the period of such suspension." Holder v. Haynes, 193 S.C. 176, 7 S.E.2d 833, 837.

However, in cases of bailments, it is said at 8 C.J.S., Bailments, § 27, p. 274: "Although there is authority to the contrary, generally, where the bailee gives his servant possession of the property and the property is damaged or lost while unauthorizedly used by the servant, the possession of the servant is the possession of the master with respect to the latter's contractual obligations to the bailor, and the bailee is liable for such damage or loss since he cannot release himself from contractual liability by his own conduct or that of his servant. The possession of the servant, however, must be with the knowledge and consent of the bailee, otherwise he is not liable."

This rule is followed in a great many states, though in a few jurisdictions a different view is taken, as stated in the case of Firemen's Funds Insurance Co. v. Schreiber, 150 Wis. 42, 135 N.W. 507, 45 L.R.A.,N.S., 314, Ann.Cas.1913E, 823. The majority rule seems to be in accord with the text of Corpus Juris Secundum, as shown by the annotated case of National Liberty Insurance Co. v. Sturtevant- Jones Co., 116 Ohio St. 299, 156 N.E. 446, 448, 52 A.L.R. 705. In that case it was said:

"*** When did the possession pass from the master? Can it be said that it rests in the breast of the servant to release his master from contractual liability to a stranger to the servant by himself becoming unfaithful to his master? If so the contract of bailment affords the bailor scant protection. If the master be not responsible for the act of his servant, the bailor, for his own security, before entering into such contract, must not only investigate and determine the trustworthiness and the financial responsibility of the bailee, but must do the same with reference to each of his servants. ***

"The degree of responsibility which the master in the instant case placed upon his servant, the extent to which he intrusted him to act in his place and stead, were of his own measuring and determination. We are not in accord with any...