Stallworth v. Doss

• Decision Date: 26 January 1967
• Docket Number: 1 Div. 391
• Citation: 194 So.2d 566,280 Ala. 409
• Parties: Fred STALLWORTH v. Pelman DOSS.
• Court: Alabama Supreme Court

Page 566

194 So.2d 566

280 Ala. 409

Fred STALLWORTH v. Pelman DOSS.

1 Div. 391.

Supreme Court of Alabama.

Jan. 26, 1967.

Gibbons & Stokes, Mobile, for appellant.

John Coleman, Mobile, for appellee.

SIMPSON, Justice.

The defendant-appellant took an automobile from the plaintiff-appellee under the following circumstances. The plaintiff purchased the car under a conditional sale contract and it was financed by Franklin Investment Company, Inc. Under the terms of the contract, the plaintiff was to pay 21 monthly installments of $42.42 each, beginning on August 5, 1962 and on the 5th day of each month thereafter. The last payment was made on September 3, 1963 in the amount of $42.42. He had not always paid the full amount of each payment and a few times had missed payments altogether. The finance company accepted each payment made, however, including the one made on September 3, in the amount of $42.42.

On September 21, 1963, the defendant accosted the plaintiff on a street in Mobile, and according to the plaintiff's testimony (not specifically refuted by defendant) showed him a badge and told him that 'I have orders to take your car'. The plaintiff gave him the car after driving it to appellant's place of business 'Auto Recovery Bureau', which defendant testified functions primarily in the repossession of automobiles.

Plaintiff filed suit against the defendant resting his case primarily upon the theory of the wrongful taking of property of the plaintiff, in Code form and a count for conversion. The jury returned a verdict for the plaintiff in the amount of $1,200. This appeal followed after the trial court overruled defendant's motion for a new trial.

Appellant assigns five errors. The first is to the effect that the court erred in sustaining demurrers to defendant's pleas three and four. No argument is made on this assignment and hence will not be considered.

The second assignment of error is predicated upon the denial of defendant's motion to set aside the verdict and grant a new trial. In support of this assignment the appellant argues that there is no evidence to show that the repossession made by the defendant was anything but peaceful and that in the absence of a showing of 'willful conversion, fraud, or gross negligence' in connection with the repossession the jury was not justified in rendering a verdict for punitive damages. The defendant's defense seems to be predicated upon his belief that Franklin Investment Company, Inc., which was the principal, had a 'lien' on the car and that he was acting only as agent for the finance company.

The gist of the action of trespass in a case like this is the injury to or interference with plaintiff's possession of goods, and possession whether founded on good or bad title will support the action against a wrongdoer or stranger.--Southern Railway Co. v. Hayes, 183 Ala. 465, 62 So. 874; Carter v. Fulgham, 134 Ala. 238, 32 So. 684; Frost v. Johnson, 256 Ala. 383, 54 So.2d 897; Southern Railway Co. v. Sanford, 262 Ala. 5, 76 So.2d 164. The defendant cannot prevail on his theory that since there was no violence, or threat of violence there can be no unlawful taking. In Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247 the defendants entered the plaintiff's home and took furniture which the plaintiff had purchased and upon which he owed a balance. Plaintiff sued in trespass for the wrongful taking. The defense was that there was no violence in the repossession and hence no unlawful taking. There the court noted:

'But the argument overlooks the gist of plaintiff's case as disclosed by that part of...