56 Ga. App. 272 | Ga. Ct. App. | 1937
Lead Opinion
Mrs. Eigbton H. Magid brought a trover action against Sandy Beaver, to recover certain personal property of the
The general grounds and the first special ground may be considered together. It is urged that there was no evidence which authorized, the jury to find the value of the personal property as of December 26, 1934, at which time a written demand was made for the property, or at any time between that date and the date of the trial, August 18, 1936; and that the verdict and judgment are too uncertain to be upheld, because it is not apparent whether the jury intended to find a verdict for damages with interest, or for the highest proved value of the property with interest; and that if the verdict is for damages, interest as such is not recoverable. It is urged, with good reason, that the jury found the value of the property as of May 14, 1934; and it is contended that this was before the time of any demand or conversion, and that the record is without evidence to show the value of any article sued for on any particular date, either before the alleged conversion or at any fixed time thereafter.
An examination of the evidence is necessary to test the correctness of the verdict. It appears that the plaintiff was the owner of certain realty known as the Clarkesville orchard, and that her husband was the president of a corporation which had an option to purchase realty known as the Tallulah orchard, the title to which had been acquired by the defendant under a sheriff’s deed; that on Decembér 16, 1930, January 20, 1931, and March 30, 1931, Mrs. Magid borrowed certain sums of money from the defendant, for which she executed and delivered her notes and security deeds; that beginning with the year 1931 and up to May 14, 1934, certain personal property was taken from the Clarkesville orchard to the Tallulah orchard with the consent of Mrs. Magid but without any relinquishment of her claim of title thereto; that subsequently she decided to cancel her indebtedness to the de
We think it fairly inferable from the above testimony that the
Was the jury authorized to find the value of the property to be $700 as of May 14, 1934? That is the date evidently fixed by the jury as the date of conversion, because the amount allowed as interest in the verdict is such as would be computed from that date to the date of the trial on August 18, 1936. It is true, as
“Verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity. Civil Code (1910), § 5927 [Code of 1933, § 110-105], Verdicts ‘should be construed so as to stand if practicable.’ Mayor &c. of Macon v. Harris, 75 Ga. 761 (10). ‘The presumptions are in favor of the validity of the verdict of a jury.’ Southern Railway Co. v. Oliver, 1 Ga. App. 734 (5) (58 S. E. 244). Where a verdict is ambiguous and susceptible of two constructions, one of which would uphold it and one of which would defeat it, it ‘will not on this account be set aside, but will be givoai a construction which will uphold it.’ Atlantic & Birmingham Ry. Co. v. Brown, 129 Ga. 622 (4) (59 S. E. 278).” David v. Marbut-Williams Lumber Co., 32 Ga. App. 157, 159 (122 S. E. 906). Accordingly, as the evidence in the present case shows that, in connection with the realty convoyed by the plaintiff to the defendant, the latter retained possession of personal property under a claim of title adverse to that of the plaintiff, the true owner, and refused to surrender the same on demand by the plaintiff, and the evidence showed that the value of the property at the time it was acquired by the defendant was such that the jury would be authorized to find that the value at the time of the conversion was $700, there being no evidence as to the value of the property after the conversion, the verdict in favor of the plaintiff for $700 with interest will be construed to mean that the jury found the value to be $700 at the time of the conversion, rather than at some time between the date of the conversion and the. trial. While the plaintiff in error does not assign error on the verdict and judgment on the groxmd that the finding of the jury was not for a lump sum, or on the ground that the verdict was for separate findings of principal and interest, he does assign error on the ground that “as they stand they are too uncertain to be upheld, because it is not apparent whether the jury intended to find a verdict for damages with interest or whether the verdict was for the highest proved value of the property and interest; and if the verdict is for damages, interest as such is not allowable.”
In Sims v. Bolton, 138 Ga. 73 (2) (74 S. E. 770), it was held: “In an action for the recovery of personal property, where the plaintiff elected to take a money verdict, and the only evidence as to the value related to the time of conversion, and no evidence as to the value at other times Avas introduced, it will not require a new trial that the presiding judge charged: ‘If you find for the plaintiff, gentlemen of the jury, you would be authorized to find the amount of the proved value of this property. If you find for the plaintiff, you can find the highest or lowest amount, that is a
In Dugas Corporation v. Georgia Power Co., 43 Ga. App. 536 (4) (159 S. E. 592), it was held: “The verdict for the plaintiff “in the sum of $2000 principal, with interest of $128.26/ is illegal. It should have been for a lump sum and not for principal and interest separately. The judgment overruling the motion for a
By a study of the different trover cases, it will be seen that while the equivalent of interest at seven per cent, on the value of the property at the time of the conversion may be allowed as additional damages, it can not be allowed when expressed in a verdict as interest in a separate amount, if properly excepted to, unless the verdict, in addition to finding principal and interest in stated amounts, fixes a total or lump sum for the two, in which event it may bo upheld, the two separate findings being considered as surplusage. It follows that the verdict in the present case, in so far as the interest is concerned, is illegal; but, as hereinafter stated, the judgment is being affirmed on condition that -the interest be written off, though otherwise it is to stand reversed.
Error is assigned on the charge of the court, that “if the defendant, Sandy Beaver, obtained possession of property belonging to the plaintiff, Mrs. Magid, and converted the same to his own use, then Mrs. Magid would be entitled to recover in this case the value of such property together with interest thereon from the date of the conversion;” it being contended that the plaintiff having elected to take a money verdict for the highest proved value of the property she was not entitled to recover interest as such, and that the charge to this effect was contrary to law. The court did not charge that the plaintiff was entitled to interest as such, and the language is not subject to the objection. It is further
Error is assigned on the charge: “If you find from the evidence, and under the law that the court has given you in charge, that the plaintiff is entitled to recover, she would be entitled to recover the value of such property, if any, that was converted by the defendant, if any was converted, together with interest thereon at the rate of seven per cent, per annum from the date of the conversion, if there was a conversion; and in that event the form of your verdict would be, eWe, the jury, find for the plaintiff so many dollars principal and so many dollars interest/” it is contended that as the plaintiff elected to take the highest proved value of the property, she was not entitled to interest, and, the verdict showing that the jury fixed the value at a time prior to any demand or conversion, that the verdict and judgment are contrary to law, there being no evidence fixing the value of the property as of any particular time. For the reasons stated in the foregoing part of this opinion, the charge was not error for the reasons given by the plaintiff in error; but the form of the verdict given by the court was incorrect. The court should have instructed the jury that they should return a verdict in a lump sum as damages.
The ground of the motion for new trial which complains that the court erred in requiring the defendant to testify, over objection, that he advertised for sale, after the filing of the trover action, certain items of the property in dispute, is without merit,
The verdict as written can not stand; but the judgment is affirmed, with direction that within ten days after the remittitur from this court is made the judgment of the trial court the plaintiff write off the entire amount of interest from the verdict and judgment; otherwise the judgment shall stand reversed. A judgment of affirmance was rendered in the present case, together with a syllabus opinion, under date of July 3, 1937. On motion for rehearing, the former judgment has been vacated, and the present judgment and opinion substituted therefor.
Judgment affirmed, with (direction.
Concurrence Opinion
I concur in the proposition that the verdict, in so far as it is a finding for the plaintiff for $700 principal, is legally authorized, and that no error appears. I do not concur in the proposition that the verdict wherein it finds an amount, to wit $110.25, as interest, is an illegal verdict, and that the interest for that reason should be written off, or the judgment overruling the defendant’s motion for a new trial should be reversed. I agree to the proposition that in cases of unliquidated damages, such as is this case, the jury should not find interest as such; but since the jury in this case was authorized to find the value of the property at the time of the conversion, together with interest from that date, and since this is what the jury did, although the two amounts should have been aggregated in the verdict, I am of the opinion that the verdict is not invalid merely because these two amounts were found separately and not in the aggregate. Western & Atlantic R. Co. v. Brown, 102 Ga. 13 (29 S. E. 130); Mayor &c. of Milledgeville v. Stembridge, 139 Ga. 692 (3) (78 S. E. 35); Tiflon, Thomasville & Gulf R. Co. v. Butler, 4 Ga. App. 191 (2 b) (60 S. E. 1087); Stapleton v. Dismukes, 43 Ga. App. 611, 616 (159 S. E. 768). I am of the opinion that no error appears, and that the verdict as rendered in which interest as such is found, subject perhaps to a reduction in the interest so as to represent interest only from the date of the demand as prayed for by the plaintiff, is legally authorized and should be sustained. £>ince I am of the opinion that no error appears, and that the
Dissenting Opinion
dissenting. It does not appear that Beaver claimed the property as his own at the time of the trial. Therefore it was necessary, in my opinion, for the plaintiff to prove a conversion. This she sought to do by proof of demand and refusal. There was no evidence as to the value of the property at the time of the conversion or thereafter. There was evidence of the value of the various articles at various times before the conversion, and many of these dates were so far before the date of the demand that it was impossible for a jury intelligently to arrive at a value as of any particular time between the demand and the time' of the trial. The amount of interest computed by the jury shows that the value of the property was found as of a time previous to the demand; for which reason I also think the verdict is illegal. Furthermore, I agree with the principles of law as stated by Judge Sutton that interest as such, as expressed in the verdict in this case, is not allowable.