Sopkin v. Premier Pontiac, Inc.

• Decision Date: 29 July 1975
• Docket Number: No. 47404,No. 1,47404,1
• Citation: 539 P.2d 1393
• Parties: Joan B. SOPKIN and Clyde Main, Appellees, v. PREMIER PONTIAC, INC., a corporation, Appellant
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1393

539 P.2d 1393

Joan B. SOPKIN and Clyde Main, Appellees, v. PREMIER PONTIAC, INC., a corporation, Appellant.

No. 47404.

Court of Appeals of Oklahoma, Division No. 1.

July 29, 1975 Released for Publication by Order of Court of Appeals Aug. 21, 1975.

Joseph R. Roberts, William B. Selman, Tulsa, for appellees.

Dyer, Powers, Marsh, Turner & Powers by Thomas G. Marsh, Tulsa, for appellant.

BOX, Judge:

An appeal by Premier Pontiac, Inc., a Corporation, defendant in the trial court, from a jury verdict in favor of Joan B. Sopkin for $400.00 actual damages and $7,100.00 exemplary damages, arising from a suit in conversion.

Plaintiffs, in August of 1970, filed an action against Premier Pontiac, Inc., a Corporation, and Benny Thomas, its agent, alleging under their first cause of action, the wrongful conversion of a 1970 Pontiac Grand Prix automobile bearing Serial No. 276570Z100121. In the first petition, plaintiffs allege that a demand was made upon the defendant, Benny Thomas, for possession of the property held and detained by the defendants but that Benny Thomas refused to deliver the same, or any part thereof, to the plaintiffs and continued to refuse to do so up to the date of the filing of the petition, and that by reason of the act of defendant Benny Thomas, a conversion has been committed.

Under the second cause of action Joan B. Sopkin and Clyde Main, as plaintiffs, seek the recovery of certain personal property that had belonged to each of the plaintiffs and seek damages for the conversion of the personal property in the automobile as well as punitive or exemplary damages. Subsequent to the filing of the first petition the plaintiffs dismissed their second cause of action relating to the conversion of personal property and filed an Amended Petition on March 1, 1972. The Amended Petition is substantially the same allegations as contained in plaintiffs' first cause of action filed in August of 1970, and in the Amended Petition plaintiffs allege that all defendants committed the wrongful acts complained of, together with a demand for the return of the automobile but that defendants refused to deliver the same or any part thereof to the plaintiff and by virtue of the acts of Benny Thomas, an agent of defendant Premier Pontiac, Inc., a conversion was committed for which plaintiff seeks the recovery of actual damages as well as punitive damages.

Thereafter defendants filed their answer, generally and specifically denying all allegations in plaintiffs' petition, denying conversion of said automobile together with an affirmative defense alleging that plaintiff Joan B. Spokin made wrongful and fraudulent representations; that she would be the owner and operator of the vehicle, when at all times they knew that automobile would be operated by a third party, and that the same would be removed from the State of Oklahoma; and further denying that the plaintiff had performed all terms of the agreement as alleged in the petition.

From a jury verdict, defendant Premier Pontiac, Inc. appeals, alleging error as follows:

'PROPOSITION NO. ONE. A verdict exonerating the agent must necessarily exonerate the principal for the principal cannot be held responsible for an act of an agent if the agent has committed no tort.

'PROPOSITION NO. TWO. Fraud is a complete defense to an action for conversion and where the plaintiff secured possession of the property by fraud and the defendant merely retook the same in a lawful manner, no action for conversion can be maintained.

'PROPOSITION NO. THREE. Exemplary, punitive or vindictive damages are not allowed as against the principal unless the principal participated in the wrongful act.

'PROPOSITION NO. FOUR. The court erred in submitting the question of punitive damages to the jury.

'PROPOSITION NO. FIVE. The amount of punitive damages affixed by the jury and allowed by the court bear no reasonable relationship to actual damages sustained by the plaintiff and are excessive, arbitrary and capricious and should be set aside or modified.'

Regarding defendant's Proposition No. 1, defendant makes the following statement in its brief:

'Defendant insists that before the Plaintiff can recover from this Defendant the Plaintiffs must have established a relationship of master and servant or of principal and agent between the alleged wrongdoer, Benny Thomas and the person sought to be charged with the damages at the time and in respect to the transaction out of which their claim arose. Should the Court determine that the evidence is sufficient to establish a relationship of master and servant, principal and agent, or employer and employee, then the Defendant Corporation insists that a verdict exonerating the Agent must necessarily exonerate the principal for the principal cannot be held responsible for an act of the agent if in fact the agent has committed no tort. Chicago R.I. & P. Ry. Co. v. Reinhart et al. (61 Okl. 72) 160 P. 51.'

We would agree with defendant's contentions if the action now being reviewed was a matter involving negligence.

Plaintiff in addition to other matters, states in her brief as follows:

'Appellant did not elect to stand on its demurrer at the close of plaintiff's evidence and, as such, it is not reviewable on appeal. Lone Star Cas Co. v. Parsons, (159 Okl. 52) 14 P.2d 369 (Okl.1937) and Greer v. Yellow Mfg., Acceptance Corp., 436 P.2d 50 (Okl.1967), wherein the Supreme Court stated in its syllabus:

"Where an intervenor demurs to plaintiff's evidence, but does not stand on said demurrer, and, after it is overruled, introduced evidence on his own behalf, he thereby waives any error in the overruling of said demurrer; and whether the judgment thereafter rendered for plaintiff is sufficiently supported by proof, will be determined, on appeal, from the evidence as a whole.'

'Also, in Burt Corporation v. Crutchfield, (153 Okl. 2) 6 P.2d 1055 (Okl.1932), the court held that:

"Any error in overruling demurrer at close of plaintiff's case is cured, where testimony introduced by defendant supplies any deficiencies in testimony of plaintiff."

Although a demurrer was sustained as to the named defendant Benny Thomas, the facts warrant the submission to the jury for the following reasons:

(1) The Supreme Court in the case of R. J. Bearings Corp. v. Warr, 192 Okl. 133, 134 P.2d 355, wherein the question was presented regarding an accord and satisfaction, stated the principles applicable to the within matter at page 356(1), as follows:

'In respect to the issue of accord and satisfaction raised by the defendant in its demurrer and discussed by it in its answer brief, the plaintiff insists that defendant is not authorized to raise this issue since it did not plead it. We have examined the defendant's answer and find that the answer pleads payment but not accord and satisfaction. The rule is that accord and satisfaction is an affirmative defense and it must be pleaded in order to be available as a defense. Gasper v. Mayer, 171 Okl. 457, 43 P.2d 467. However, there is a recognized exception to this rule and that is: Where evidence is introduced without objection upon a point not in issue in the case the court may consider the pleadings amended to conform to the evidence if such evidence will support the judgment rendered.' (Emphasis supplied.)

The evidence is uncontradicted that the credit manager for defendant, Mike Wood, was the motivating factor in the retention of plaintiff's automobile, placing same on the roof of defendant's business and locking same in order that no other person could remove the automobile.

In 38 Cyc. 2054, it is said:

'Every person is liable in trover who personally or by agent commits an act of conversion, or who participated by instigating, aiding or assisting another, or who benefits in its proceeds in whole or in part.'

The facts in the case now under review as heretofore set out, reveals that the defendant Premier Pontiac, Inc., retained the proceeds of the conversion by neither offering to return the automobile nor the $400.00 down payment to plaintiff, and there was no question of the authority of the defendant's servants Benny Thomas and Mike Wood, to act on its behalf regarding the retention of the automobile in question.

Regarding defendant's (Appellant) Proposition No. 2, defendant alleges as follows:

'The general rule is that the Defendant has a complete defense to an action for conversion where the Plaintiff secured possession of the property from the Defendant by fraud and the Defendant merely retook the same in a lawful manner. See Johnson v. Oswald (38 Minn. 550) 38 N.W. 630 and --- Am.Jur.2d, Conversion, Sect. 70 et seq.'

The arguments set out in appellant's brief do not constitute undisputed evidence in appellants favor. In fact, the testimony was undisputed that (1) Joan wanted an automobile to get groceries and transportation for her two boys, (2) that her disability was known to appellant, (3) that she and Clyde answered all questions submitted to them, (4) that appellant ran a credit check on Joan, (5) that Joan gave appellant $400.00 down payment, (6) that Joan was sold an automobile, (7) that Joan received permission to wait a few days to make her $200.00 note payment, (8) that Joan was told by appellant that it was all right to go to Dallas for a few days, (9) that Joan offered the balance of $200.00 on the date same was due but it was rejected, and (10) that Joan had fulfilled every requirement appellant asked of her.

The evidence was also undisputed that Joan was never asked whether she could drive the car. Evidence of misrepresentation, essential to show fraud, was lacking altogether.

We find no error.

Regarding defendant's (Appellant) Proposition No. 3, defendant argues in its brief as follows:

'This argument is correlary to Defendant's first argument. The Agent committed no tort and is exonerated, then the principal must be exonerated also. Neither actual nor punitive damages are recoverable from the...