Wilson-weesner-wilkinson Co v. Collier

• Decision Date: 11 March 1940
• Docket Number: No. 27994.,27994.
• Citation: 8 S.E.2d 171
• Parties: WILSON-WEESNER-WILKINSON CO. v. COLLIER.
• Court: Georgia Court of Appeals

8 S.E.2d 171

WILSON-WEESNER-WILKINSON CO.

v.COLLIER.

No. 27994.

Court of Appeals of Georgia,

Division No. 2.

March 11, 1940.

Rehearing Denied March 29, 1940.

Syllabus by the Court.

1. "Where during the progress of a trial exceptions pendente lite are filed to rulings of the judge, and after a final judgment is rendered the cause is brought to this court for review, and the judgment is reversed, resulting in a new trial; and where after the new trial is had, the case is, upon another writ of error, brought to this court, it is too late in the last bill of exceptions to complain of errors alleged to have been committed previous to the issuing of the first writ of error." Hodgkins v. Marshall, 102 Ga. 191, 29 S.E. 174.

2. Where the court, on the trial of a suit in trover, instructs the jury as to the particular recovery to be allowed, it will be presumed that the instruction is in accordance with an election previously made by the plaintiff of the form of recovery desired by him.

3. Where a plaintiff in trover has elected to take a verdict for the value of the property, and its hire, evidence as to its value for hire is admissible.

4. The admission of secondary evidence of the contents and signature of a document and the sufficiency of the showing to ac count for nonproduction of the original is within the discretion of the trial court and cannot constitute error unless the discretion is abused.

5. Refusal to direct a verdict is never error.

6. In a trover case in which the plaintiff has elected to take a verdict for the value of the property and hire, the evidence showing that the property had a value for hire, it is not error for the court to refuse a request to charge that the allowance of hire is in the discretion of the jury.

7. Under the Code, § 107-105, the plaintiff in an action of trover may elect to take a verdict for the value of the property and its hire, and a verdict finding separate amounts for value and for hire will not be set aside, and the amount for hire will not be stricken from it, where the trial court rendered a judgment combining the two findings into a gross sum.

8. It was not error in this case for the court to instruct the jury that there was a conversion of the property.

9. The verdict was not excessive.

Error from Superior Court, Fulton, County; Edgar E. Pomeroy, Judge.

Suit by A. J. Collier against Wilson-Weesner-Wilkinson Company for conversion of a gasoline excavating machine. To review an adverse judgment, defendant brings error.

Affirmed.

Arnold, Gambrell & Arnold, Chas. W. Bergman, and J. C. Savage, all of Atlanta, for plaintiff in error.

Carlton Mobley, of Forsyth, and W. L. Bryan, of Atlanta, for defendant in error.

STEPHENS, Presiding Judge.

A. J. Collier brought a suit against Wil-son-Weesner-Wilkinson Company, alleging that about May 4, 1936 the plaintiff delivered to the agent of the defendant a gasoline shovel or excavating machine with certain equipment, that this property was then, and prior thereto, in the peaceable possession of the plaintiff, that the property was delivered with the understanding that the defendant's agent was authorized to lease the property for a period of two months with the right of renewal for one additional month, that the defendant delivered the property to the Work's Progress Administration of the United States, except that some of the equipment was retained by the defendant's agent, that, on July 12, 1936, the plaintiff demanded of the defendant the return of the property, and was advised that WPA had leased it for an additional month from July 12, to August 12, that the defendant, through its agent W. C. Caye, leased the property in the name of W. C. Caye & Company, representing to the officials of WPA that the property was owned by W. C. Caye & Company, and that this was done without the plaintiff's knowledge and consent, that the defendant executed a lease in the name of Caye & Company as owner to WPA for three months beginning July 1, and purported to give WPA an option to purchase the property for $5,500, on which were to be credited the rental payments from May 12, 1936 until the option was exercised, that the property was of the value of $6,-500, that the plaintiff had made demand on the defendant for the return of the property, which demand was refused, that the monthly rental value of the property was $450 per month. The prayer was "that process do issue requiring said defendants to be and appear at the next term of this court to answer petitioner's complaint and that he do have judgment against said defendants." The defendant filed general and special demurrers to the petition. The court sustained two special grounds, with leave to amend. The plaintiff filed an amendment, in which he amended the prayer of the petition by adding at the end the words "jointly for the return of the property sued for and for the monthly rental value of said property." The defendants renewed their former demurrer, and added other grounds. The court, on March 3, 1937, sustained the general demurrer on the ground that the plaintiff was suing for a property judgment. On March 4, 1937, the court passed an order stating that "the above order having been inadvertently entered without giving plaintiff an opportunity to amend, upon consideration by the court and upon oral motion of plaintiff the above order is modified and the plaintiff has ten days leave to amend." To this latter order the defendant filed exceptions pendente lite. On March 12, 1937 the plaintiff amended the prayer of the petition by striking the words "jointly for a return of the said property sued for and for the monthly rental value of said property." The petition in its final form as amended contained an allegation as to the rental value of the property and prayed against the defendants. The defendant renewed its former demurrers to the petition as amended and added other grounds. All the demurrers to the petition were overruled on April 19, 1937. The defendant filed exceptions pendente lite which were certified on May 10, 1937.

The defendants filed an answer and three amendments thereto in which they denied liability and set up that prior to delivering the property to it the plaintiff had executed a bill of sale to secure a debt to a Mrs. Pope who undertook to repossess the equipment, and in order to protect the contract with WPA it was necessary to pay off the bill of sale, which the defendants paid on January 13, 1937 by paying Mrs. Pope $1,-404, that certain replacements were necessary on the machine in order to make it serviceable to the WPA, that the defendant had expended about $1,500 for that purpose and asked to have these sums set off against the plaintiff's claim; and in a final amendment the defendant claimed as set offs against the market value of the property sued for, $1,200 paid to the plaintiff together with the sum of $1,583.84 being the amount of the bill of sale to secure debt and interest thereon to date, all other items of set off being stricken. The jury found for the plaintiff $4,000 as value, and $4,650 as rent, and as against which defendant is entitled to a set off of $1,583.84. The court entered a judgment in favor of the plaintiff for 'a total of $8,650; that is $4,000 as value of the machine sued for and $4,650 as rent together with future interest at the rate of seven per cent. (7%) per annum from the date of this judgment against which Wilson-Weesner-Wilkinson Company is to be credited with a set off as of the date of this judgment in the amount of $1,583.84."

The defendant made a motion for new trial on the general grounds and on 17 special grounds. The motion was overruled, and the defendant filed a bill of exceptions assigning error on the order overruling the motion for new trial and on its bills of exceptions pendente lite.

1. This case has been before this court before. Collier v. Wilson-Weesner-Wilkinson Company, 58 Ga.App. 44, 197 S.E. 516. It was there held that the evidence demanded a verdict for the plaintiff on the question whether there was a con-version by the defendant. The exceptions pendente lite in the present record were taken prior to the former trial. These exceptions could have been urged by the defendant in a cross bill of exceptions when the case was brought to this court before. Since this was not done the defendant must be considered as having waived all of the exceptions embraced within these bills of exceptions pendente lite. Hodgkins v. Marshall, 102 Ga. 191, 29 S.E. 174; Williams Realty & Loan Co. v. Simmons, 188 Ga. 184 (4), 185, 3 S.E.2d 580; Drischel v. Drischel, 51 Ga.App. 97, 179 S.E. 577.

2. It can not now be questioned that this was an action of trover in which the plaintiff sues for damages by reason of the unlawful conversion of his property by the defendant. The Code, § 107-105 provides: "The plaintiff in an action to recover personal property may elect whether to accept an alternative verdict for the property or its value, or whether to demand a verdict for the damages alone, or for the property alone and its hire, if any; and it shall be the duty of the court to instruct the jury to render the verdict as the plaintiff may thus elect." The plaintiff, now the defendant in error, alleges in his brief that "at the opening of the trial, when the jury was impaneled, plaintiff's counsel announced that the plaintiff had elected to sue for the value of the property and hire." This statement is not denied by the defendant, but it is claimed that the record does not show what election, if any, was made by the plaintiff. It is true that the record does not expressly show an election. But in view of the fact that the court is by the statute required to instruct the jury to render the verdict "as the plaintiff may elect, " it is necessary that the plaintiff make known his election before the court instructs the jury. In this case the court instructed the jury that the only issues for them to determine were "the market value of...