Sisk v. Carney, 44991

Decision Date18 March 1970
Docket NumberNo. 1,No. 44991,44991,1
Citation121 Ga.App. 560,174 S.E.2d 456
PartiesB. D. SISK et al. v. Reed CARNEY
CourtGeorgia Court of Appeals

Syllabus by the Court

1. The motion to dismiss the appeal is denied.

2.a Testimony pertaining to telephone conversations between plaintiff, his wife, and defendant's agent was admissible to explain plaintiff's conduct.

b Declarations made to plaintiff by an agent of defendant in defendant's presence were admissible against defendant.

3. Where defendant lawfully acquired possession of plaintiff's property as a bailee, the evidence was sufficient to support a finding that a demand and refusal to redeliver plaintiff's property was made.

4. Plaintiff's evidence was insufficient to support the verdict that the property converted had a fair market value of $100.

5. Punitive damages are recoverable in a trover action.

Plaintiff sued the defendant for the conversion of a television set, praying for $100 general damages; $5,000 punitive damages; and attorney's fees. The jury returned a verdict for $100 general damages; $1,600 punitive damages; and $250 for attorney's fees.

At trial plaintiff testified that he relinquished possession of his 1954 color television set to the defendant for repairs and that defendant advised him the cost of repair would be not more than $40. Thereafter plaintiff and his wife had telephone conversations with a Jim Lingerfelt, identified at trial by the defendant as the manager of his shop. In these conversations, both plaintiff and his wife testified they were informed by Lingerfelt that although an effort was made, the set could not be repaired and that payment of a $120 charge for the labor performed in the attempt to repair was necessary for return of the set. As a result of these conversations and upon his attorney's advice, plaintiff went to defendant's place of business where he made a demand upon Lingerfelt for his television set and tendered $40. Lingerfelt, according to plaintiff, demanded payment of the $120 charge and refused to give plaintiff the television or accept the $40.

Defendant testified that while an attempt was made to repair the set, he determined that it could not be repaired for $40 and was not economically repairable as it was over ten years old. He advised plaintiff's wife by phone of this determination. Shortly thereafter, he overheard a heated telephone conversation between plaintiff and Lingerfelt which immediately followed plaintiff's appearance at defendant's shop. On this occasion, according to defendant, plaintiff conversed with Lingerfelt and demanded that the television be repaired for $40. Lingerfelt stated that it could not be repaired for that price. Defendant then intervened at this point and advised plaintiff that he could have his property at no charge. Defendant also testified that he disclaimed any interest in plaintiff's property; denied he authorized anyone on his behalf to refuse the plaintiff possession of the television and that plaintiff could claim his property at any time.

Defendant moved for a nonsuit at the conclusion of plaintiff's case; moved to strike the portion of plaintiff's complaint demanding punitive damages; moved for a directed verdict at the close of all the evidence; moved for judgment n.o.v. and for a new trial. All of these motions were denied by the trial court.

Louis D. Yancey, Jr., Atlanta, for appellants.

N. Forrest Montet, Atlanta, for appellee.

BELL, Chief Judge.

1. The motion to dismiss the appeal is denied.

2. Defendant maintains that all the conversations between plaintiff, his wife and Jim Lingerfelt are inadmissible hearsay. With reference to the telephone conversations, the court admitted them as offered by plaintiff to explain the subsequent conduct of plaintiff, namely his visit to defendant's shop. As defendant identified Lingerfelt as his manager or agent and admitted in his own testimony that he overheard one conversation between plaintiff and Lingerfelt which he described as heated, this testimony is sufficient to establish authenticity. The conversations clearly explain the conduct of plaintiff and are admissible as original evidence and outside the hearsay rule. Code § 38-302. Thruway Service City, Inc. v. Townsend, 116 Ga.App. 379, 157 S.E.2d 564. As regards the statements or declarations of Lingerfelt made to plaintiff, defendant admitted that he was present, overheard the conversation, and participated in it. Although there is a conflict as to the content of Lingerfelt's declarations, under these circumstances they are admissible as being within the rules found in Code §§ 4-312, 38-305, 38-406, concerning the admissibility of an agent's declarations and our holding in Speir v. Westmoreland, 40 Ga.App. 302(6), 149 S.E. 422.

3. In an action of trover where the defendant's possession was lawfully acquired, a demand for the property and a refusal to deliver must be shown by plaintiff. Wood v. Sanders, 87 Ga.App. 84, 86, 73 S.E.2d 55. Defendant, as a bailee, acquired lawful possession of plaintiff's television. However, plaintiff's evidence of his confrontation with defendant's manager is sufficient to authorize a finding of a demand upon defendant and a refusal to redeliver the property to plaintiff. The trial court did not err in overruling the motions of defendant dealing with the issue of conversion.

4. Plaintiff in his complaint pleaded that the television set had a fair market...

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41 cases
  • Taylor v. Powertel, Inc.
    • United States
    • Georgia Court of Appeals
    • July 2, 2001
    ...and as such come within OCGA § 51-12-5.1(b). See Grant v. Newsome, 201 Ga.App. 710(1), 411 S.E.2d 796 (1991); Sisk v. Carney, 121 Ga.App. 560, 564(5), 174 S.E.2d 456 (1970). Therefore, punitive damages are recoverable where such torts can be proven and the statutory requirements have been s......
  • Hagin v. Powers
    • United States
    • Georgia Court of Appeals
    • October 8, 1976 to value is inadmissible as it is nothing more than an 'unsupported conclusion or guess of the witness. " Sisk v. Carney, 121 Ga.App. 560, 563, 174 S.E.2d 456, 459. In the instant case, plaintiffs neither articulated a 'basis' nor a 'reason' for their opinion as to the value of their pro......
  • Jones v. Spindel
    • United States
    • Georgia Court of Appeals
    • January 4, 1973
    ...v. State, 225 Ga. 423, 169 S.E.2d 322; Thruway Service City, Inc. v. Townsend, 116 Ga.App. 379(3), 157 S.E.2d 564; Sisk v. Carney, 121 Ga.App. 560, 562, 174 S.E.2d 456. 5. Another evidentiary question is presented on this appeal. When the instant suit was first filed in 1963 defendants were......
  • Pelletier v. Schultz
    • United States
    • Georgia Court of Appeals
    • January 8, 1981
    ...141 Ga.App. 883, 884, 234 S.E.2d 711. Conversion is a tort. Carithers v. Maddox, 80 Ga.App. 230(5), 55 S.E.2d 775; Sisk v. Carney, 121 Ga.App. 560, 564, 174 S.E.2d 456. The plaintiff's action also asked for punitive damages, which may be awarded in a suit based in tort. Code Ann. § 105-2002......
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