Sapp v. Howe
| Decision Date | 26 February 1949 |
| Docket Number | 32352. |
| Citation | 52 S.E.2d 571,79 Ga.App. 1 |
| Parties | SAPP v. HOWE. |
| Court | Georgia Court of Appeals |
Rehearing Denied March 30, 1949.
Syllabus by the Court.
1. The evidence authorized the verdict for $1,750 as the value of the truck.
2. The charge of the court that if the plaintiff recovered in the case he would be entitled to recover the highest proved value between the date of the alleged conversion and the trial, under the evidence relating to the market value, was not error.
3. The failure of the court to charge that the jury could not accept as absolutely binding the estimates of value placed on the truck in controversy, which estimates were only a part of the testimony relating to value was not error.
4. The evidence authorized the verdict for $200 attorney's fees as expenses of litigation.
5. Grounds 10 and 11 relating to the charge of the court on the subject of partnership and agency, and to the failure of the court to charge more fully on partnership, do not show error.
6. There was no error in the charge as to the ownership of the truck in controversy.
7. The evidence supported the verdict and the court did not err in overruling the motion for new trial.
B Fred Howe sued D. W. Sapp in trover for a 1947 Studebaker truck, of the alleged value of $1,750 and $250 attorney's fees as expeses of litigation. The plaintiff elected to take a money verdict and the jury found for the plaintiff $1,750 and attorney's fees of $200. The defendant moved for a new trial on both general and special grounds. The motion was overruled and the defendant excepted.
E F. Taylor and Grady Gillon, both of Macon, for plaintiff in error.
David L. Mincey, of Macon, for defendant in error.
1. Ground 4 of the motion for new trial asserts that there is no competent evidence in the record which will support the verdict for $1,750 as the value of the truck. There was evidence as to the general condition of the truck, its use and state of repair, what the plaintiff paid for it, the length of time the plaintiff had owned it and the mileage he had put on it. Two witnesses who were apparently disinterested--one an automobile salesman and one the Studebaker dealer in the Macon area--testified as to the value of the truck. One of the witnesses estimated its value at $1,750 and the other at $1,755. The value or market price of an article may be shown by direct or circumstantial evidence, or both, and the question of the value of an article is peculiarly for the jury. The jury may consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge throwing light upon the question. Atlantic Coast Line R. Co. v. Harris, 1 Ga.App. 667, 57 S.E. 1030; Minchew v. Nahunta Lumber Co., 5 Ga.App. 154, 62 S.E. 716; Westberry v. Hand, 19 Ga.App. 529, 91 S.E. 930; Georgia Northern Ry. Co. v. Battle, 22 Ga.App. 665, 97 S.E. 94. This ground of the motion shows no error.
2. Grounds 5 and 6 complain of the charge that if the plaintiff recovered in the case he would be entitled to recover the highest proved value between the date of the alleged conversion and the trial, and because the court failed to charge that the highest proved value meant the highest proved market value. It is contended that it was error for the court to omit the word 'market' in the charge with respect to the value of the truck. Ordinarily the measure of damages where property has been converted is its market value at the time of its conversion. Park v. Swann, 20 Ga.App. 39, 92 S.E. 398. The Code, § 107-103 is as follows: 'In estimating the value of personalty unlawfully detained, the plaintiff may recover the highest amount which he shall prove between the time of the conversion and the trial.' While it would have been more accurate for the court to have included the word 'market', the charge complained of was in substance the law as state in the code and these grounds show no reversible error. The jury doubtless understood that the court was dealing with the market value of the truck as the record shows that some of the questions proponded to the witnesses on the subject and their replies related to market value. See Koplin v. Shartle Bros. Machine Co., 150 Ga. 509, 104 S.E. 217.
3. Error is assigned in ground 7 on the failure of the court to charge that the jury could not accept as absolutely binding the estimates of value placed on the truck in controversy. The defendant cites on this contention Oxford v. Ellis, 117 Ga. 817, 45 S.E. 67; Elder v. Woodruff Hardware and Mfg. Co., 16 Ga.App. 255, 85 S.E. 268, and the same case in 9 Ga.App. 484, 71 S.E. 806; and Sappington v. Rimes, 21 Ga.App. 810, 95 S.E. 316. The estimated value placed on the truck was only a part of the evidence tending to show the value of the truck. As stated in some of the cases relied on by the defendant, the highest proved value means the highest value which the jury, from a consideration of all of the proof, finds that the property was worth at any time between the conversion and the trial. While the estimates as to the value of the truck were not binding on the jury they were a part of the evidence which could be considered on the question of value, and the court did not err in failing to charge as contended.
4. Grounds 8 and 9 complain of the verdict for attorney's fees based on the alleged bad faith of the defendant and the charge of the court on that subject. The Code, § 20-1404 provides that the expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them. This court said in Patterson & Co. v. Peterson, 15 Ga.App. 680, 684, 84 S.E. 163, 165, after quoting the Code section, 'We are of the opinion that the intent of the law, in the absence of a contract, is to leave the matter of expenses of litigation in all such cases as those mentioned therein solely to the jury trying the case.' Under this construction we cannot say that there was no sufficient evidence to authorize the verdict for attorney's fees and the charge of the court complained of. Although the defendant testified otherwise, the witness for the plaintiff who delivered the truck to the defendant testified that he left it with the defendant to see if he could find a buyer for it; that he told the defendant that the plaintiff owned the truck and that he (the witness) would have to get in touch with the plaintiff later and have the trade approved if the defendant got a buyer for the truck; that later in the day the defendant told the witness he had sold the truck for $1,200 and was charging $50 for selling it, and gave the witness a check for $1,150; that the defendant said that $1,200 was all he got out of the truck. It is admitted by the defendant that he sold the truck to another party for $1,305, his contention being that before he sold the truck he had bought it from the witness at $1,150 net to the witness. Whether or not bad faith must amount to...
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