Russell-Vaughn Ford, Inc. v. Rouse

• Decision Date: 11 January 1968
• Docket Number: RUSSELL-VAUGHN,6 Div. 379
• Citation: 281 Ala. 567,206 So.2d 371
• Parties: FORD, INC., et al. v. E. W. ROUSE.
• Court: Alabama Supreme Court

Page 371

206 So.2d 371

281 Ala. 567

RUSSELL-VAUGHN FORD, INC., et al. v.E. W. ROUSE.

6 Div. 379.

Supreme Court of Alabama.

Jan. 11, 1968.

Rehearing Denied Feb. 8, 1968.

Martin, Balch, Bingham, Hawthorne & Williams and Edw. S. Allen, Birmingham, for appellants.

Rives, Peterson, Pettus & Conway, Frank O. Burge, Jr., and Duncan Manley, Birmingham, for appellee.

SIMPSON, Justice.

The plaintiff in this case filed suit against Russell-Vaughn Ford, Inc. and several individuals.All individual defendants were stricken by plaintiff before trial except the appellantJames Parker, and one Virgil Harris who has not participated in this appeal.

The complaint was amended several times but ultimately issue was joined and the case went to the jury on a common count for conversion of plaintiff's 1960 Falcon automobile and a second count charging the defendants with conspiracy to convert the automobile.

Essentially the facts are as follows:

On April 24, 1962, the appellee went to the place of business of Russell-Vaughn Ford, Inc., to discuss trading his Falcon automobile in on a new Ford.He talked with one of the salesmen for a while who offered to trade a new Ford for the Falcon, plus $1,900.The trade was not consummated on this basis, but Mr. Rouse went to his house and picked up his wife and children and returned to the dealer.With his wife and children there Mr. Rouse discussed further the trade but no deal was made that night.

The following night he returned with a friend where further discussions on the trade were had.At the time of this visit one of the salesmen, Virgil Harris, asked Mr. Rouse for the keys to his Falcon.The keys were given to him and Mr. Rouse, his friend, and appellant Parker looked at the new cars for a time and then proceeded with the negotiations with regard to the trade.The testimony indicates that in this conversation the salesman offered to trade a new Ford for the Falcon, plus $2,400.The plaintiff declined to trade on this basis.

At this stage of the negotiations, Mr. Rouse asked for the return of the keys to the Falcon.The evidence is to the effect that both salesmen to whom Rouse had talked said that they did not know where the keys were.Mr. Rouse then asked several people who appeared to be employees of Russell-Vaughn for the keys.He further asked several people in the building if they knew where his keys were.The testimony indicates that there were a number of people around who were aware of the fact that the appellee was seeking to have the keys to his car returned.Several mechanics and salesmen were, according to plaintiff's testimony, sitting around on cars looking at him and laughing at him.

After a period of time the plaintiff called the police department of the City of Birmingham.In response to his call Officer Montgomery came to the showroom of Russell-Vaughn Ford and was informed by the plaintiff that he was unable to get his keys back.Shortly after the arrival of the policeman, according to the policeman's testimony, the salesman Parker threw the keys to Mr. Rouse with the statement that he was a cry baby and that 'they just wanted to see him cry a while'.

The evidence is abundant to the effect that Mr. Rouse made a number of efforts to have his keys returned to him.He talked to the salesmen, to the manager, to mechanics, etc. and was met in many instances with laughter as if the entire matter was a 'big joke'.

As noted, the case was tried to a jury, and submitted on a conversion count in code form and on a second count charging conspiracy to convert.The jury returned a general verdict in favor of the plaintiff in the amount of $5,000.This appeal followed, after the trial court denied a motion for new trial.

The appellants have made several assignments of error.Initially it is argued that the facts of this case do not make out a case of conversion.It is argued that the conversion if at all, as a conversion of the keys to the automobile, not of the automobile itself.It is further contended that there was not under the case here presented a conversion at all.We are not persuaded that the law of Alabama supports this proposition.As noted in Long-Lewis Hardware Co. v. Abston, 235 Ala. 599, 180 So. 261,

'It has been held by this court that 'the fact of conversion does not necessarily import an acquisition of property in the defendant.'Howton v. Mathias, 197 Ala. 457, 73 So. 92, 95.The conversion may consist, not only in an appropriation of the property to one's own use, but in its destruction, Or in exercising dominion over it in exclusion or defiance of plaintiff's right.McGill v. Hollman, 208 Ala. 9, 93 So. 848, 31 A.L.R. 941, 948;Conner v. Allen, 33 Ala. 515;St. Louis & S.F. Ry. Co. v. Georgia, F. & A. Ry. Co.,...