Roebuck Auto Sales, Inc. v. Wallace

• Decision Date: 03 October 1974
• Citation: 301 So.2d 546,293 Ala. 231
• Parties: ROEBUCK AUTO SALES, INC. v. Joseph A. WALLACE. SC 705.
• Court: Alabama Supreme Court

Page 546

301 So.2d 546

293 Ala. 231

ROEBUCK AUTO SALES, INC. v. Joseph A. WALLACE.

SC 705.

Supreme Court of Alabama.

Oct. 3, 1974.

Sirote, Permutt, Friend & Friedman, and William G. West, Jr., Birmingham, for appellant.

Corretti, Newsom & Rogers, Birmingham, for appellee.

PER CURIAM.

The question in this case is whether a plaintiff is entitled to recover under a detinue count and counts in trover and trespass joined in a bill of complaint. Are the recoveries in the same action totally inconsistent and mutually exclusive? We answer in the negative.

The facts of the case are not overly complex. In February, 1969, Joseph Wallace purchased a 1969 Volkswagen convertible from Roebuck Auto Sales. Apparently, the automobile was bought for Wallace's daughter, Mary Emily, to use. In June, 1969, Mary Emily wrecked the vehicle, and it was returned to Roebuck for repairs. The repairs were made and after someone in the Wallace family paid the $100 deductible under the insurance policy covering the Volkswagen, it was released to Wallace. At that time there remained unpaid a balance of $579.51 on the repair bill. In July, 1969, the insurer issued a check to Wallace to cover the remainder of repair bill. Wallace's wife testified she received the check, signed Mr. Wallace's name as an endorsement, and cashed the check. She testified further that she still had the money at the time of the trial. However, she was uncertain as to whether she deposited the check or received cash, and she said she could not account for every penny.

In November, 1969, Roebuck sent the plaintiff a certified letter, return receipt requested, threatening legal action unless the bill was paid by November 24, 1969. There was evidence that Mrs. Wallace then had conversations with the defendant's agents, and told them she had been dissatisfied with the work done on the car and that the check would be withheld until it was done properly. The car had been taken in for various small repairs between the major repair and the certified letter of November, 1969. In any event, there is no indication that anything else transpired between the parties until February, 1971. On February 19th, Wallace's daughter, Mary Emily, drove the convertible into the defendant's service department to have the windshield wipers repaired. When the work on the wipers was completed, Miss Wallace was presented with a bill for $13.72, with the following addendum, 'Old Bill Due $579.49 (sic).' She was informed by the service manager of Roebuck that she would not be given the automobile until both of these amounts had been paid. Miss Wallace became very angry and supposedly threw an ash tray at the service manager. Thereupon she called her mother, who instructed her to call the police. The police arrived, but declined to get involved, save for transporting Miss Wallace to her home.

Wallace filed his complaint on February 24, 1971, in four counts. Count One was in statutory detinue. Count Two was in trover and conversion, claiming damages in the amount of $50,000. Count Three was in trespass to chattels and claimed $50,000 damages. Count Four sounded in trover or trespass to chattels and damages of $50,000 were claimed in this count. There was no demand for punitive damages. Wallace filed a replevin bond and had possession of the car at the time of the trial.

In his instruction to the jury, the trial judge stated that if the jury found for the defendant under County One, it was not to consider the other counts. However, if it found for plaintiff under Count One, then it was free to consider Counts Two, Three and Four. The trial judge also instructed the jury that it would be proper to award punitive damages under the last three counts, if it felt that defendant not only acted wrongfully, but did so in a willful or malicious manner, or under circumstances of aggravation. Counsel for defendant made no objection to any part of this oral charge at that time.

The jury returned two verdicts. It found for the plaintiff under Count One. This entitled Wallace to the car plus $130 which was the stipulated reasonable hire for the car during the period of its detention. This is one of the possible recoveries in statutory detinue. There appears to be no consideration of the other type recovery, 'alternate value,' in view of the fact that Wallace already had the car at the time of the trial. In addition to the car and $130, the jury found for the plaintiff on Counts Two, Three, and Four, and assessed his damages in the amount of $10,000. No indication was given as to what portion of this sum constituted compensatory damages and what constituted punitive damages.

The trial court entered a judgment on both verdicts and soon thereafter the defendant paid the $130 into court in satisfaction of the judgment under Count One. Thereafter, Roebuck made a post-judgment motion to have the $10,000 verdict stricken or otherwise satisfied by reason of the payment of the $130 and recovery of the car. This motion and a motion for a new trial were overruled. Roebuck then brought this appeal.

There are five assignments of error, all predicated upon the trial court's overruling of the motions above. All of the assignments stand upon the basic principle that once the plaintiff recovered the car under Count One, any recovery in conversion or trespass under the other counts of the complaint was improper and inconsistent as a matter of law.

In conversion the recovery traditionally sought is the fair value of the chattel at the time of conversion, plus interest. This is in effect a 'forced sale' of the property. Industrial Savings Bank v. Greenwald, 229 Ala. 529, 158 So. 734 (1935). In statutory detinue, recovery consists of the chattel, in specie, or its alternate value. This is augmented by a reasonable sum for rental during the period of detention. Title 7, §§ 918, 919, Code of Alabama 1940 (Recompiled 1958). In the latter case, title to the property remains in the plaintiff, while in trover and conversion title passes to the wrongdoer upon satisfaction of the judgment. Roebuck states the obvious principle that title to property cannot reside in two adverse parties at the same time; that a plaintiff cannot affirm his title and divest it in the same action. Roebuck agrees there is nothing wrong with pleading in the alternative, but recovery on two counts which are mutually exclusive by their very nature is wrong.

We will begin by stating that the fact that Wallace recovered the property prior to the suit should in no way affect his right to bring an action for conversion. That tort is complete when the chattel is converted. A recovery of the property does not amount to a waiver of any right of recovery for conversion. This appears to be the rule whether the property is surrendered voluntarily or through resort to legal action. See Prosser on Torts, 3rd Ed., p. 98, 1964, where it is said:

'In any case, return of the chattel, whether consented to by the plaintiff or compelled by the court, does not bar the action, but goes merely to reduce the damages.'

Many of our cases say that prior return of the property to the plaintiff does not bar a suit for conversion. See Renfro's Adm'x. v. Hughes, 69 Ala. 581 (1881); Ewing v. Blount, 20 Ala. 694 (1852); King v. Franklin, 132 Ala. 559, 31 So. 467 (1902).

As we understand the gist of Wallace's argument, he contends there is no inconsistency in his recovery because he was entitled to receive Some damages for the mere interference with his right to possession, whether in trover or trespass. In Stallworth v. Doss, 280 Ala. 409, 194...