Victor v. Fairchild Motor Corp.
| Decision Date | 08 June 1942 |
| Docket Number | 17782. |
| Citation | 8 So.2d 566 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | VICTOR v. FAIRCHILD MOTOR CORPORATION. |
Rehearing Denied June 29, 1942.
Writ of Certiorari Denied July 27, 1942.
O'Niell & O'Niell, of New Orleans, for appellant.
Borris Burk, of New Orleans, for appellee.
On January 21, 1941, plaintiff purchased a Chevrolet automobile from defendant for the price and sum of $424, on which $100 was paid in cash, the balance thereof to be paid in weekly installments of $4.50 each. The remainder of the purchase price, $324, was secured by a chattel mortgage, upon which up to May 27, 1941, plaintiff alleges having made various payments aggregating $30.
Plaintiff further alleges that on April 4, 1941, he purchased four new tires and inner tubes for the price of $52, which were in turn mounted on his said automobile.
Plaintiff further alleges that on May 27, 1941, defendant, acting through its agent and employee, illegally and without authority, forcibly took possession of the said automobile without his consent, authorization or acquiescence; that, as a result of these illegal and unwarranted acts of defendant plaintiff sustained damages in the loss of the use and enjoyment of his car, which he fixes at $1 per day, from the date of its wrongful conversion, May 27, 1941, until it shall be returned to his possession. Plaintiff also alleges that he has been additionally injured and damaged in the amount of $1,476, itemized as follows:
1. Cost of the car, $424.00
2. Humiliation, embarrassment and inconvenience, $1000.00
3. Cost of four (4) new tires and inner tubes, $52.00
The prayer of the petition is that defendant be ordered to feturn the said automobile to plaintiff and that plaintiff recover judgment in the sum of $1,000 and for the additional sum of $1 per day, computed from May 27, 1941, until its return.
In the alternative, should defendant refuse to return the said car plaintiff prays for judgment in the additional amount of $476, being the purchase price of the car, tires and tubes.
Defendant, in answer to the petition, denied liability and further denied that plaintiff had paid the sum of $30 on account of the unpaid balance of the purchase price, asserting that, in truth and in fact, plaintiff had paid the sum of $25.50.
The trial court, after hearing on these issues, rendered judgment in favor of plaintiff for damages in the sum of $150, and ordering the defendant to forthwith return to plaintiff the automobile in question. The court further ordered that "in the event the said automobile is not returned to the plaintiff there will be an additional judgment in favor of the plaintiff, Henry Victor, and against the defendant, Fairchild Motor Corporation, in the sum of $180.00, making a total of $330.00, together with legal interest from date of judicial demand, until paid, together with cancellation of plaintiff's obligation on the balance of the purchase price of said automobile, and for all costs of court."
Defendant has appealed and plaintiff, by way of answer to the appeal, asks for an increase to the amount originally prayed for.
Defendant has conceded the repossession of plaintiff's automobile by one of its agents acting under and by virtue of its instructions and that it is presently in its possession. In view of this, the only question before us for determination is the nature of the repossession, i. e., whether defendant's repossession was either with the consent of the plaintiff or thereafter acquiesced in.
There is some degree of conflict between the testimony of plaintiff, his wife and daughter, and that of defendant's agent, Martinez, as to what actually happened at the time the automobile was removed. The fact remains, without necessarily discussing the testimony in detail, that the plaintiff, who owned the vehicle and who alone was responsible for the balance of the purchase price, was absent from his home at the time the car was removed by Martinez. This fact was made known to defendant's agent on arriving at plaintiff's home.
Plaintiff testified that he was not present when the car was removed that he never authorized...
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