Turner v. Peoples Bank of Pell City

• Decision Date: 21 December 1979
• Parties: Austin TURNER v. The PEOPLES BANK OF PELL CITY. 78-372.
• Court: Alabama Supreme Court

Page 706

378 So.2d 706

Austin TURNER v. The PEOPLES BANK OF PELL CITY.

78-372.

Supreme Court of Alabama.

Dec. 21, 1979.

Robert H. King, Gadsden, R. Ben Hogan, III, of Hogan, Smith & Alspaugh, Birmingham, for appellant.

William E. Hereford, Jr., of Hereford & Blair, P. C., Pell City, for appellee.

PER CURIAM.

This is an appeal from an order granting a motion for directed verdict to defendant The Peoples Bank of Pell City following the close of plaintiff Turner's case. We affirm.

Turner owned a skidder, a heavy piece of machinery used in the pulpwood business. Anniston Equipment Company (AEC) had done repair work on the skidder amounting to approximately $3,000. When Turner did not pay the bill, AEC wrote Turner demanding payment, threatening sale of the skidder to satisfy the debt. The Peoples Bank (Bank) told AEC it had a lien on the skidder to cover a debt of $3,691.86 which Turner owed the Bank. The Bank demanded protection of its lien. Before the date of proposed sale, Turner made a partial payment of $113 to AEC, and AEC stopped proceedings to sell the skidder. The Bank, in response to a telephone inquiry by AEC a few days before the sale, told AEC that it would release its lien on the skidder for $1,500. In October, 1975, AEC, without notice to Turner, sold the skidder for $7,500 (AEC's asking price), although the fair market value was alleged to have been at least $10,000. AEC deducted $3,000, plus various costs, for its bill, and gave the Bank $1,500 for its release of the lien. AEC then kept the excess of the sale. Although AEC made out a check as a refund to Turner for his $113 payment, it subsequently cancelled the check and never repaid the $113 payment to Turner. The Bank later foreclosed the mortgage on Turner's house to satisfy the balance of Turner's debt with the Bank. Turner tendered payment on the debt, but payment was rejected, Turner being told that foreclosure proceedings had already begun.

Turner sued the Bank and AEC for conspiracy to convert the skidder. Turner and AEC settled out-of-court. At the close of Turner's case, the trial court granted the Bank's motion for directed verdict. This appeal then followed.

The law of civil conspiracy in Alabama is well stated in O'Dell v. State, 270 Ala. 236, 117 So.2d 164 (1959), viz.:

"A conspiracy is a combination to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Barber v. Stephenson, 260 Ala. 151, 69 So.2d 251; Gaines v. Malone, 244 Ala. 490, 13 So.2d 870.

"Where civil liability for a conspiracy is sought to be enforced, the conspiracy itself furnishes no cause of action. The gist of the action is not the conspiracy alleged but the wrong committed. Louisville & N. R. Co. v. National Park Bank, 188 Ala. 109, 65 So. 1003; Humphrey v. Terry, 206 Ala. 249, 89 So. 607.

"A conspiracy may be both pleaded and proved as aggravating the wrong complained of and enabling the complainant to recover in one action against all of the joint tort-feasors. . . ."

". . . The existence of the conspiracy must often be inferentially and circumstantially derived from the character of the acts done, the relation of the parties, and other facts and circumstances suggestive of concerted action. . . ."

270 Ala. at 240, 117 So.2d at 168.

Appellant Turner contends that there is a scintilla of evidence, direct or circumstantial, to go to the jury on the alleged conspiracy between AEC and the Bank to convert Turner's skidder. Specifically, Turner contends that the conspiracy arose during the telephone call between AEC and the Bank.

The trial court held to the contrary, finding that there was no evidence to establish the conspiracy, and directed a verdict for the Bank, viz.:

"(I)t was the contention of the Plaintiff that the Defendant, the bank, The Peoples Bank of Pell City and Anniston Equipment Company agreed to bring about the sale of the skidder with the bank having a mortgage. The Defendant has filed a motion with me for a directed verdict and on the basis that there is no evidence that there was an agreement to bring about the sale for the Jury to consider and I have followed the evidence and listened to the arguments of the lawyers and therefore direct you to return a verdict in favor of the Defendant."

Although the jury refused to sign the directed verdict, the trial judge entered judgment for the Bank accordingly.

The standard by which the trial court must determine the propriety of granting a motion for directed verdict, and likewise our standard upon review, is the scintilla rule. ARCP 50(e). As we noted in Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975):

" '* * * it is only where the facts are such that all reasonable men must draw the same conclusion from them that the question . . . is ever considered as one of law for the court. Unless the evidence is free from doubt or adverse inference, the question is for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594. Where the affirmative charge (now directed verdict) is requested, the entire evidence must be viewed in a light favorable to the opponent. When a Reasonable inference may be drawn, which is adverse to the party requesting the charge, the charge is properly refused. (Citations omitted.)' (Emphasis supplied.)

" 'In civil cases, a question must go to the jury, if the evidence, or any reasonable inference arising therefrom,...