Treadwell Ford, Inc. v. Wallace

• Decision Date: 03 January 1973
• Citation: 271 So.2d 505,49 Ala.App. 308
• Parties: TREADWELL FORD, INC. v. Gerald L. WALLACE. Civ. 2.
• Court: Alabama Court of Civil Appeals

Page 505

271 So.2d 505

49 Ala.App. 308

TREADWELL FORD, INC. v. Gerald L. WALLACE.

Civ. 2.

Court of Civil Appeals of Alabama.

Jan. 3, 1973.

Vincent F. Kilborn, Mobile, for appellant.

Matranga, Hess & Sullivan and Roderick P. Stout, Mobile, for appellee.

BRADLEY, Judge.

This is an appeal from a judgment of the Circuit Court of Mobile County rendered in favor of appellee, Dr. Gerald Wallace, for the conversion of his 1961 MGA automobile by appellant, Treadwell Ford, Inc.

The proceedings were commenced on September 1, 1967 when appellee filed a complaint against appellant for breach of an agreement to repair his car. There were several amendments to the complaint which included adding a count for negligence. Then on June 4, 1970 appellee amended his complaint again. This amended complaint contained two counts. The first count went out on demurrer and the second count stayed in the complaint. This count two sounded in trover for the conversion of one MGA automobile, and alleged that the conversion occurred on September 7, 1966. The appellee also asked for punitive damages. In answer appellant pled the general issue.

Trial was commenced on count two of the complaint. Sometime during the trial the complaint was amended by adding count three which was identical to count two except for the allegation of the time of conversion. Count three alleged that the conversion of appellee's automobile occurred on '. . . to wit November 15, 1966 . . ..' Before submission of the case to the jury the appellant requested the general affirmative charges as to the case as a whole. These requested charges were refused and the case was submitted to the jury on counts two and three.

The jury returned a general verdict in favor of appellee for $2,000.00 plus costs. Thereupon appellant filed a motion for a new trial. The motion was denied. He then filed notice of appeal to this court from the judgment on the merits and the order on the motion for new trial.

The evidence and its tendencies reveal the following facts.

The appellee purchased the car in question for $750.00 and spent about $300--$500 fixing it up and estimated its value in 1966 as $1,500--$1,600.

He let a friend, Ken Wallace, no relation, borrow the car in the summer of 1966. Sometime after obtaining the car, Ken Wallace reported to appellee that vandals had broken the windshield and ripped the canvas top, and he would have it repaired.

Ken Wallace took the car to Jim's Paint and Body Shop there in Mobile for repairs. Appellee disclaimed any firsthand knowledge of the car being at Jim's.

After about three months, and without it being repaired, the car was taken to appellant by direction of Ken Wallace with the approval of appellee, on November 15, 1966.

Appellee stated that he was told that appellant was to repair the roof and windshield. Later, according to appellee, appellant entered into an agreement with him to get the car in running condition.

Appellee stated that he next saw his car at appellant's in December 1966. At this time he stated the value of the car to be about $1,500.00, and it was in drivable condition, but would not run.

He next saw his car in the summer of 1967 at White's Imports in Mobile. He stated the car would not run, had no battery and the interior was completely deteriorated. He estimated its value at that time to be about $50.00.

During the time that the car was at appellant's Ken Wallace was expected to have it repaired and appellee stated that he had not limited Ken Wallace's authority to have the repairs made. However, Ken Wallace moved to Baton Rouge, Louisiana and appellee stated he took over the task of getting the car repaired. Appellee stated that he informed appellant that the car belonged to him.

Appellee testified that he made many efforts to get his car repaired and received many promises from appellant that it would be repaired, but it was not repaired except for the windshield.

Appellee stated that he was told by appellant in the summer of 1967 that they did not know where his car was, that they must have lost it when they moved their place of business. Appellee also said that he did not know where the car was until he located it at White's Imports. He said he did not authorize Ken Wallace or anyone else to take the car to White's Imports.

Appellee testified that appellant never refused to return his car nor did he demand that the car be returned. He wanted it fixed and put in running condition.

Witnesses for appellant testified that the car was taken from Jim's to appellant's on November 15, 1966 at the direction of Ken Wallace. They stated that Ken Wallace asked them to repair the windshield and it was so repaired. Later they learned that the car belonged to the appellee. Appellee was asked to come get the car because appellant had done all it could for the car.

Later Ken Wallace, by letter, requested that appellant send the car to White's Imports for repairs. The car was taken by appellant's wrecker to White's on March 22, 1967. Ken Wallace paid appellant $46.35 for the repair of the windshield. The testimony was that at that time the car was in the same condition as when appellant received it.

One of the witnesses for appellant said that after the windshield was repaired, he called Dr. Wallace and told him to come get his car. Dr. Wallace said he wanted his car put in running condition. He was told that appellant could do no more for the car because they were not equipped to handle foreign cars. This witness stated that he was directed by appellee to get in touch with Ken Wallace, who was finally located in Baton Rouge, Louisiana. Upon being told that the car would not run and the doctor wanted it fixed, it was agreed between Ken and appellant that the car would be taken to White's Imports for repairs. Ken Wallace sent a check for $25.00 to have the car repaired. The car was taken to White's by appellant's wrecker.

In his letter to appellant directing the disposition of the car, Ken Wallace asked that Dr. Wallace be informed that his car was at White's. The witness for appellant stated that he called Dr. Wallace and told him where his car was located. Dr. Wallace disclaims any knowledge of such a call.

White's Imports repaired the car and awaited instructions from Ken Wallace. The bookkeeper for White's Imports stated that White's did not know who the car belonged to and that White's dealt only with Ken Wallace. The bookkeeper stated that the car was in pretty bad shape when it was received at White's and is still in bad shape and will not run.

Appellant's sixty-five assignments of error were argued under three main headings:

1. The general affirmative charge as requested by appellant should have been given to the jury because:

a. the evidence failed to show facts constituting a conversion;

b. there was no evidence establishing termination of an agency relationship between appellee and Ken Wallace; and

c. there was a fatal variance between pleading and proof of the date of the alleged conversion.

2. Damages were not sufficiently proved or were excessive.

3. There was no evidence establishing a right to punitive damages for the appellee.

In arguing that it was due the general affirmative charges for the reason there was no evidence of a conversion, appellant says first that the appellee, in order to prove a conversion, should have proved that by some tortious act appellant deprived appellee of the possession of his car. Appellant contends that there is no evidence of a deprivation of possession and that at most the evidence shows there was a breach of the agreement to repair or negligent repair of the car. Here appellant relies on the case of Cotton v. Harris Transfer and Warehouse Co., 21 Ala.App. 136, 106 So. 220.

Secondly, appellant argues that where possession was obtained lawfully and dominion thereover has not been exercised inconsistently with the possessory rights of appellee, a demand and refusal is necessary in order to establish a conversion, and cites us to Pollard v. Pollard, 207 Ala. 270, 92 So. 488; and Cotton v. Harris Transfer and Warehouse Co., Supra.

Although the cited cases correctly state a part of the law of trover, the facts in those cases are distinguishable from those in the instant case. In the Pollard case there was no destruction of the property, only a delay in its return. And, in the Cotton case the court said that 'mere failure to perform an act obligatory by contract, or by which property is lost to the owner' will not support an action for conversion, but a question is presented for jury resolution where a gratuitous bailee delivers the property of plaintiff to one who he thinks has the authority to receive it and by such act the property is lost to the true owner.

Omitting the question of agency for the time being, and construing the facts in the present case most favorably for appellee, against whom the general charge was requested in the trial court, the car in question was delivered to appellant by the agent of appellee for repair of the windshield. Appellee took over from the agent, Ken Wallace, the negotiations with appellant for the repair of the car. Then, after retaining possession of the car for several months, appellant, acting under instructions from Ken Wallace, delivered the car to White's Imports, a third person, without notice to appellee, thereby causing the loss of the car to appellee and its complete destruction.

In keeping with the rule of the Cotton case, the most that can be said for appellant is that the question of conversion vel non in the deliverance of the car to White's and its destruction was for the jury's determination.

We would also point out that we consider appellant's argument on this point without sound basis for its failure to consider that a conversion can be accomplished where there is a wrongful delivery of personal property by a bailee resulting in its loss to the true owner.

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