Thoma v. Tracy Motor Sales, Inc.

• Decision Date: 11 July 1960
• Docket Number: No. 9,9
• Parties: Ross B. THOMA and Marle B. Thoma, his wife, jointly and severally, Plaintiffs and Appellants, v. TRACY MOTOR SALES, INC., a Michigan corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 360

104 N.W.2d 360

360 Mich. 434

Ross B. THOMA and Marle B. Thoma, his wife, jointly and severally, Plaintiffs and Appellants, v. TRACY MOTOR SALES, INC., a Michigan corporation, Defendant and Appellee.

No. 9.

Supreme Court of Michigan.

July 11, 1960.

Charles S. Toy, Milford, for plaintiffs and appellants.

Dykema, Jones, Wheat, Spencer & Goodnow, Detroit, for appellee Tracy Motor Sales, Inc.

Before the Entire Bench.

EDWARDS, Justice.

This is a suit for conversion of a new Lincoln automobile. Plaintiffs are the owners of the car and defendant is the automobile sales and service agency which sold the car and with whom plaintiffs had left the car for repairs following an accident. After the taking of proofs, the trial judge directed a verdict for defendant. Hence, in reciting the facts where they are in dispute, we take the favorable view toward plaintiffs' evidence which the jury would have had a right to take had the case been submitted. Gapske v. Hatch, 347 Mich. 648, 81 N.W.2d 337; Miller v. Pillow, 337 Mich. 262, 59 N.W.2d 283.

In April, 1953, Ross and Marie Thoma, plaintiffs herein, purchased a 1953 model Lincoln from defendant Tracy Motor Sales for $5,000. Plaintiffs had difficulties with the brakes on the Lincoln and several times had it back in defendant's garage for repairs of the brakes.

On December 27, 1953, Ross Thoma was driving the Lincoln when he had an accident. Mr. Thoma testified at trial that subsequent thereto, 'we telephoned Tracy, and they went out and got it [the Lincoln].' He also testified that a few day later Tracy called him and gave him an estimate of $800 to $900 on repairs and I said, 'Okay. Go and fix it up.'

From other undisputed testimony, it appears that plaintiffs' insurance company's agent went to the Tracy garage and approved the estimate. Tracy then had the Lincoln taken to Jim Arnolds's Collision Shop where they customarily had their body work done.

Arnold's started on the repair work but then had several visitors who wanted to inspect and photograph the brakes on the Lincoln. It developed that plaintiffs had filed suit against Tracy Motor Sales and the Ford Motor Company, claiming that brake failure on the Lincoln had occasioned the accident.

On discovering this, Mr. Lusk, an employee of defendant, called the Thoma home. He testified:

'I called and talked to Mrs. Thoma. She said that she was Mrs. Thoma. And I asked to speak to Mr. Thoma. She said that he had a jaw injury, or something. I asked her if they would sign the repair order at that time to go ahead and complete the car. She told me that they would not sign the repair order, and they didn't want anything further to do with the car. They had turned it over to their lawyer.'

Lusk also testified that on his reporting this conversation to defendant's general manager, he was told to stop work on the car. This was done.

The damaged Lincoln stayed at the Arnold Collision Shop for two years. Meantime, defendant Tracy Motor Sales sold out its agency. Finally, in 1956, Arnold called Thoma's home and talked to someone who said he was Thoma. Arnold testified as follows as to this conversation:

'I asked him, was he the owner of this Lincoln car that I had gotten from Tracy Motors, and he said, 'yes.' He said, 'How come you have the car?' And, so I told him that I had the car, that I did repairs for Tracy Motors, and that the car had been left there, and that I had been ordered to stop repairs on it, and that Tracy Motors at that time had sold out, and I had called Tracy Motors; and at that time Mr. Tracy, he was not in town, and I could not get ahold of Mr. Tracy. And Mr. Adams, who took over Tracy's,--no one knew what to do with the car. Well, I had stored it for 2 years myself. So, I told Mr. Thoma, what should I do with the car? He said, 'I don't know. You will have to call my attorney.' So, I called Mr. Toy, and he said--'

The objection which interrupted this testimony was based on the hearsay rule and the fact that the Mr. Toy referred to was deceased. The court overruled the objection, and appellants present this ruling as one of their questions upon appeal. However, we find no basis for deciding this evidentiary question. Arnold's testimony was quite indefinite as to whether the instructions to which (over objection) he testified were given in by Mr. Toy or Mr. Thoma. Mr. Thoma's testimony as to the conversation in question (which in the present posture of the case we accept as true) was:

"Well, I don't want the car until you fix it up all complete with the brakes and everything.' I says: 'Well, you should see my lawyer.' I says: 'There is a lawsuit pending."

It is undisputed that Arnold did talk to Toy. And there is no evidence in this record that he received any instructions as to disposition of the car or payment of his charges.

Thereafter Arnold had the Lincoln sold at public auction under the mechanic lien law for repairs and storage totaling $860. Plaintiffs concede that they 'were duly and properly notified of the proceedings which resulted in their car being sold.'

Appellants claim that this record presents...