State Farm Mut. Auto. Ins. Co. v. Wagnon
| Decision Date | 27 November 1974 |
| Citation | 304 So.2d 216,53 Ala.App. 712 |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Gregory WAGNON. Civ. 399. |
| Court | Alabama Court of Civil Appeals |
Dortch, Wright & Ford, Gadsden, for appellant.
Burns, Carr, Shumaker & Davis, Gadsden, for appellee.
This is an appeal by defendant-appellant from a jury verdict and judgment thereon in favor of plaintiff-appellee for the sum of $2,800. The complaint sought damages for the conversion by defendant of a 1967 Pontiac automobile.
The facts are that on May 7, 1968, a 1967 Pontiac was reported stolen by Lynn and John Riley in Ft. Lauderdale, Florida. A claim was made to State Farm and the appellant compensated Riley for the loss and received a certificate of title for the automobile.
On June 10, 1968, appellee bought the car in question from a friend, Mr. Bradley, who lived next door to appellee's mother. Appellee received a bill of sale from Mr. Bradley.
Appellee kept the vehicle for a few months and then, in October, attempted to sell it to a Mr. Freeman. Mr. Freeman purchased the automobile and paid by check, but the same night of the sale informed appellee that he had learned the car was stolen and demanded and received his check back. Mr. Freeman also informed appellee that the FBI wished to talk with appellee the next day.
At the meeting with the FBI an inspection of the car was made by the FBI agents and also by Captain Davis, investigator with the Alabama Department of Public Safety. After the inspection appellee was informed that the car was stolen. He was also apparently advised that he should return the car to the bank. After removing certain accessories he, himself, had added, appellee did relinquish the vehicle to the bank and at no time thereafter did he ever request of the bank that possession be returned to him.
A confrontation by the law enforcement officer was also held with Mr. Bradley, who had sold the car to appellee. Mr. Bradley claimed he had bought the car from Mr. Nails, a resident of Huntsville, Alabama. An investigation failed to produce this person, or even an indication as to his existence. There was no bill of sale in Mr. Bradley's possession from this alleged sale.
An investigation was also made on the car tag (Alabama 31--41759) at the tax assessment office. This investigation revealed that the motor vehicle identification number on the car was at variance with the number listed on the record in the tax assessment office. The owner of the car was listed as Bill Edward Williams of Gadsden. An attempt to locate this gentleman was unsuccessful. The tag on the car was not bought by appellee, but delivered to him after the sale by Bradley.
The record further reveals that in early November 1968, Mr. Robert Simmons, an employee of appellant, received word that the automobile stolen from the Rileys in Florida was in Etowah County. Mr. Simmons learned the vehicle was in possession of the First National Bank of Attalla and had been stored with a wrecker service. After an investigation of the vehicle, Mr. Simmons was able to ascertain that it was indeed the stolen car which his company had previously made payment to their insured.
Mr. Simmons made demand on the bank to return the car. This demand was refused and appellant filed a detinue action against the bank. A consent judgment was entered in favor of appellant and they received possession of the vehicle in question.
In February 1969, appellee signed out a warrant against Bradley, who had sold appellee the vehicle. The warrant was based on the allegation that Bradley had falsely represented to appellee that he was the owner of the auto in question. Bradley was later indicted by the Grand Jury but the case was nolle prosequi.
The present suit was commenced on December 9, 1970. This was two years after appellee had voluntarily relinquished possession of the auto to the bank, and apparently a short time after appellee received notice that he still owed the bank $3,200 on the car. As noted earlier, appellee was successful in this suit.
Appellant presents to this court seventeen assignments of error which fall into two categories. These categories are that the trail court erred in refusing to grant appellant's timely motions for directed verdict and 'For A Judgment Not Withstanding The Verdict or in the Alternative For a New Trial.' The real basis of appellant's appeal, as we view it, is bottomed on the contention that appellee has failed to prove a conversion.
Before reaching the actual merits of this appeal we are compelled to dispose of a contention by appellee's able counsel that appellant's appeal was not timely filed.
This contention arises from the following set of facts: The jury verdict was rendered on November 7, 1973. Appellant filed his motion for judgment notwithstanding the verdict or for a new trial on November 9, 1973. Appeals of this nature must be taken within six months from rendition of the judgment (Tit. 7, § 788, Ala. Code (1940)), but the time for appeal is suspended by the filing of a motion for new trial.
In this case the judge did not rule on the motion and therefore, by virtue of Rule 59.1, Alabama Rules of Court, the motion was deemed denied on the ninetieth day following the filing of the motion. Appellee contends that inasmuch as no action was taken by the judge, the time for filing an appeal was not tolled and, therefore, appellant's six months began running on November 7 instead of in February. As this appeal was not filed until June 12, 1974, outside of the six month period dating from November 7, appellee would have us dismiss appellant's appeal as not timely filed.
While this issue has not been decided in our state, this court refuses to adopt appellee's argument and we hold instead that the time for appeal does not begin to run until after the expiration of the ninety day period.
Under Tit. 7, § 788, Ala.Code (1940), appeals of this nature 'must be taken within six months from the rendition of the judgment or decree.' Our supreme court has held that a motion for a new trial, seasonably made, suspends the judgment and it does not become final for purposes of appeal until said motion is disposed of. The time within which an appeal from a judgment, after the rendition of which a motion for a new trial has been seasonably made, must be taken, begins to run from the date the trial court rules upon the action for a new trial. Florence Cotton and Iron Co. v. Field, 104 Ala. 471, 16 So. 538. See also Childers v. Samoset Cotton Mills, 213 Ala. 292, 104 So. 641, wherein our supreme court held that the pendency of a motion for a new trial suspends the finality of the judgment for the pupose of an appeal until the motion is disposed of by either the act of the court or By operation of law.
Rule 59.1, Alabama Rules of Court, reads as follows:
'Disposition Of New Trial And Other Post-Trial Motions
'No post-trial motion filed pursuant to Rules 50, 52 and 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless entended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown, A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall Constitute a denial of such motion as of the date of the expiration of the period.' (Emphasis added)
As we read this rule with Tit. 7, § 788, Ala.Code (1940); Florence Cotton and Iron Co. v. Field, Supra, and Childers v. Samoset Cotton Mills, Supra, in mind, it is our opinion that the time for an appeal does not begin to run until the denial by operation of law on the ninetieth day. We find accordingly that the appeal was timely filed.
We now reach the merits of the case based on appellant's contention that there is no proof of a conversion.
For there to be a conversion of property, it must appear that there has been a wrongful taking or wrongful detention, or an illegal assumption of ownership or an illegal user or misuser. Mobile Parking Station v. Lawson, 54 Ala.App. 181, 298 So.2d 266.
To be entitled to right of recovery for conversion, plaintiff must have a general or special...
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