Evans v. Cannon

34 Ga. App. 467 | Ga. Ct. App. | 1925

Jenkins, P. J.

(After stating the foregoing facts.) The first ground of the amendment to the motion for a new trial was that court erred in admitting warehouse receipts, offered by the plaintiff, the ground of objection being that they were irrelevant and immaterial, and that there was no evidence of assignment of the same to plaintiff; that they could not be basis of title in the plaintiff, that they were not negotiable, and could not be symbolic of delivery of property to the plaintiff. The Civil Code (1910), § 3528, referring to pawns and pledges, provides: “Delivery of the property is essential to this bailment, but . . warehouse receipts . . or other commercial paper symbolic of property may be delivered in pledge.” In Lightsey v. Lee, 8 Ga. App. 762 (70 S. E. 179), it was held that a warehouse receipt very similar to those involved here was a symbol of the property ■ itself,- was negotiable, and that delivery of the same was equivalent to constructive delivery of the cotton described therein, and required warehouseman, upon presentation and payment of charges and advances, if there were any, to make actual delivery to whomsoever might hold them. And see Planters Rice Mill Co. v. Merchants Nat. Bank, 78 Ga. 574 (3 S. E. 327); Citizens Banking Co. v. Peacock, 103 Ga. 180 (29 S. E. 752). “A warehouse receipt is not in a technical sense like a bill of exchange or negotiable instrument; it merely stands in the place of the property it represents, and a delivery of the receipt has the same effect in transferring the title to the property as the delivery of the property.” Zellner v. Mobley, 84 Ga. 746, 747 (11 S. E. 402, 20 Am. St. Rep. 390). See Bank of Sparta v. Butts, 4 Ga. App. 308 (1, 2, 5, 6), 310, 311 (61 S. E. 298); Livingston v. Anderson, 2 Ga. App. 274 (1), 278, 281 (58 S. E. 505). From what is said it follows that the receipts were properly admitted in evidence as proof of plaintiff’s title.

The second, third, and fourth special grounds raised, in various forms, the proposition that the court erred in instructing the jury to find for the plaintiff, leaving open only the question of amount of his damages. It was admitted that Evans was sheriff, that as such he levied upon and sold the property to Hall, under general fi. fa. against Macon Oil & Produce Company, and that at time of levy the property was in possession of warehouseman. The real gravamen of tide defendants’ defenses was that the plaintiff was not the owner at the time of levy and sale, and that, if ever he did own them, the warehouseman was his agent and bailee, and, as such, voluntarily surrendered possession to the sheriff, thereby absolving the defendants from any liability as trespassers. While we are impressed with the fact that the defendants do not seem to have committed any intentional wrong, and that the case appears to be one where any disposition must necessarily impose a hardship upon one side or the other of the opposing litigants, we think, under the authorities, none of the contentions made by the defendants are legally tenable; and that in view of the undisputed title of the plaintiff, of the admissions by defendants as to their conduct in the premises, and in view of the fact that the process levied was not special but general, the court did not err in the instructions complained of. “The word ‘trespass’ generally involves the idea of force, but, as used in the code sections above cited, it is employed in a broader sense, and comprehends any misfeasance, transgression, or offense whiqh damages another person’s health, reputation, or property.” Williams v. Inman, 1 Ga. App. 321 (57 S. E. 1009), citing Cox v. Strickland, 120 Ga. 104 (47 S. E. 912, 1 Ann. Cas. 870). “When a fi. fa. issues upon a general judgment, . . the officer is simply commanded to levy and seize generally property of the defendant, and when he acts he does so at his peril; and if he seizes property of a person other than the defendant, and thereby causes injury to an innocent party, he and all parties acting with him in procuring such a seizure are liable as joint'trespassers.” Haslett v. Rogers, 107 Ga. 239, 244 (2) (33 S. E. 44); McDougald v. Dougherty, 12 Ga. 613, 615; Wallace v. Holly, 13 Ga. 389, 392. In the case of Farmers & Traders Nat. Bank Y. Allen-Holmes Co., 122 Ga. 67 (49 S. E. 816), there is a full discussion of the principles involved in the instant ease. The court there held that “One is liable, in an action of trespass, for causing an attachment against a debtor to be levied on a consignment of goods in the custody of a common carrier, the title to which was in a third person to whom a bill of lading . . had previously been duly assigned by such debtor; and that if the property . . was brought to sale under the attachment proceedings, such third person would be entitled to recover damages, for such unlawful seizure and sale.” Further, “The refined niceties of technical pleading do not obtain in Georgia. . . Nor is the petition drafted on the theory that there had been a wrongful conversion of the plaintiff’s property. The suit sounds in trespass, and is for an unlawful invasion of the property rights of the plaintiff. The facts alleged in the petition amounted to an actionable trespass. . . The attachment was authority to the levying officer to seize the property of the defendant in attachment, but none whatever to seize the property of a third person, though the defendant in attachment had lately sold it to him” (citing Wilson v. Paulsen, 57 Ga. 596). “After the assignment of this bill of lading, the bank had constructive possession of the carload of corn which had been delivered to the carrier for transportation. Under the very terms of the contract of shipment, the carrier obligated itself to transport the car and hold it subject to the orders of the holder of the bill of lading, whether such holder was the party to whom the bill of lading was.originally issued, or his assignee. So, at the time the car arrived at its destination, the railroad company’s possession of the corn was that of the plaintiff bank, and as bailee the company would have been liable to the bank if it had delivered the goods to the consignee without a due surrender of the bill of lading held by the bank” (citing Hobbs v. Chicago Packing Co., 98 Ga. 576, 25 S. E. 584, 58 Am. St. Rep. 320). And see Holton v. Taylor, 80 Ga. 508 (1) (6 S. E. 15).

In the instant case, if this property had been in the actual possession of the defendant in fi. fa., the sheriff might have been protected by an application of the decision in Hoyt v. Smith, 20 Ga. App. 595 (93 S. E. 224). On the question of the liability of the defendants who aided the sheriff, it was held in Williams v. Inman, supra, that “'One who aids, abets, or incites, or encourages or directs by conduct or words, in the perpetration of a trespass, is liable equally with the actual trespassers/ ” quoting from 28 Am. & Eng. Enc. L. (2d ed.) 566. “One who procures or assists in the commission of a trespass or does any act which ordinarily induces its commission is liable therefor as the actual perpetrator.” Burns v. Horkan, 126 Ga. 161 (54 S. E. 946). That decision holds also that “One who commits a trespass for and in behalf of a corporation is himself liable therefor.” And such is true although, being ignorant of the true owner’s title, the agent may have acted in perfect good faith. “Whoever meddles with another’s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so -he acts in good faith.” Miller v. Wilson, 98 Ga. 567 (1) (25 S. E. 578, 58 Am. St. Rep. 319).

As to the effect of the warehouseman’s voluntary surrender of the property, the Civil Code (1910), § 4486, provides that “In all cases of bailments, where the possession is in the bailee, a trespass committed during the existence of the bailment will give a right of action to the bailee for the interference with his special property, and a concurrent right of action to the bailor for the interference with his general property.” Thus, while it may be true that the voluntary surrender of the property by the warehouseman might have amounted to a waiver or consent to the trespass as against his own special property right, such would not seem to affect the right of property of the bailor, since the relationship does not impute any such power or authority. “Authority from a third person having no right to give it does not justify acts which without authority would amount to a trespass to personalty.” ' 38 Cyc. 1065.

An application of the above-stated principles to the facts of this case compels us to hold that the action of the judge complained of was not erroneous; and the judgment is therefore

Affirmed.

Stephens and Bell, JJ., concur.