33 Ga. App. 218 | Ga. Ct. App. | 1924
(After stating the foregoing facts.)
One of the contentions made by the plaintiffs in error, the defendants in the court below, is that, assuming that the plaintiff had title to the automobile, the evidence failed to show any possession of ox any exexcise of dominion over the car by them, or any act on their part amounting to a conversion. It is insisted that the evidence established, without dispute, that the Automobile Underwriters’ Detective Bureau was maintained by certain insurance companies, including the Provident Washington, and that the defendants Haas & Howell had no connection therewith. After the ear had been seized by the detectives it was stored in a garage, from which it was later delivered to a salvage company on the order of the detective bureau. The salvage company sold it for the insurer and remitted to the insurer the proceeds of the sale. It is contended that the defendants had no relation, directly or indirectly, to any of these transactions.
We can not agree that the evidence was such as to demand a finding in favor of these contentions. Mr. Herman J. Haas, a member of the defendant firm, testified that when Miller informed them that the car was stolen they immediately notified the Automobile. Underwriters’ Detective Bureau “to try and look out for it.” The detectives, on the seizure of the car, having referred Godby to Haas & Howell, his wife called at their office on the same day and had a conversation with Mr. Haas, looking to a recovery of the automobile. She testified: “I went to the office of Haas & Howell . . to see if I could get the car, and I talked with Mr. Herman Haas. . . He said they had the car; I understood him to say that. He says, ‘We have the car.’ I says, ‘What can I do Mr. Haas ?’ And he says, ‘I don’t know, unless I sold it back to you.’ I says, T don’t want to buy our own car,’ and he says they had the car and it was stored down on Auburn Avenue. He says, ‘We have it stored.’ . . I was in the office of Haas & Howell at that time. . . He wouldn’t deliver the ear back. He insisted I pay the money for it. He called up John M. Smith and asked
“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, nor in case of an agent, that he delivers the property to his principal before receiving notice of the claim of the owner. If an agent takes the property of another without his consent and delivers it to the principal, it is a conversion, and trover will lie for the recovery of the property or for damages, 'as the plaintiff may elect.” Flannery v. Harley, 117 Ga. 483, 485
It is true that admissions may be the subject of explanation (Hill v. Armour Fertilizer Works, 21 Ga. App. 45 (5), 93 S. E. 511; William Hester Marble Co. v. Walton, 22 Ga. App. 433 (4), 96 S. E. 269; 1 R. C. L. 473, § 9), but where the party to whom they are ascribed denies that he made them, and it is thus issuable before the jury whether they were made or not, and there is nO evidence that, if they were made, their author was laboring under a misapprehension of the facts, their effect is not avoided as a matter of law merely by other testimony pointing to a different conclusion, even though such other testimony is not directly contradicted. Chero-Cola Bottling Co. v. Southern Express Co., 29 Ga. App. 656 (2) (116 S. E. 325); Redd v. Lathem, 32 Ga. App. 214 (1) (123 S. E. 175). Thus, the jury were not precluded from inferring, from the evidence in relation to the admissions, that the defendants were parties to the conversion, merely because there was other testimony which, if standing alone, might have demanded the conclusion that the defendants were in no way connected therewith. The rule is not here applicable, that, where an inference is drawn solely from circumstances and is not demanded thereby, it may be overcome as a matter of law by the positive and uncontradicted testimony of an unimpeached witness, consistent with the circumstantial evidence relied on by the other party. Frazier v. Georgia R. Co., 108 Ga. 807 (1) (33 S. E. 996); Western & Atlantic R. Co. v. Beason, 112 Ga. 553 (1) (37 S. E. 863); Atlantic Coast Line R. Co. v. Drake, 21 Ga. App. 81 (4) (94 S. E. 65); Neill v. Hill, 32 Ga. App. 381 (123 S. E. 30).
If the defendants had admitted (or not denied) the making of
It is further urged that the verdict should be set aside on the ground that there was no sufficient proof of the value of the hire. The only evidence on this point was that of the plaintiff himself, who testified as follows: “I don’t know what the reasonable value of the hire of that car would be per day,—I have never hired a car very much,—but anywhere from $5 to $10 a day. I don’t know much about the subject, but I should say $5' a day for hire.” There was no objection to this testimony. The original cost of the automobile, which was a Buick touring car, was not in dispute. It could not have been in use more than a year and a half before the detectives seized it. The jury upon competent evidence found its value at that time to be $1000. The testimony of the witnesses as to the value of the hire thus related to the hire of an article, as to the cost, value, and apparent serviceability of which the jury were informed by the other evidence. While the plaintiff estimated that the value of the hire would be $5 per day, the jury allowed only about a dollar per day from the date of the seizure until the trial. We can not say that their finding on this issue was without evidence to support it. See Civil Code (1910), § 5875; Moon v. Wright, 12 Ga. App. 659 (7) (78 S. E. 141); Maynard v. American Railway Express Co., 29 Ga. App. 329 (2) (115 S. E. 35), and cases cited.
This contention of the plaintiff in error is made only under the general grounds of the motion, in which the verdict is attacked as a whole. It may be that there should have been a special assignment going to the specific part of the verdict relating to hire. Believing, however, that the finding for hire was warranted, we assume, without deciding, that the question is properly raised. See Hobbs v. Citizens Bank of Wrens, 32 Ga. App. 522 (8) (124 S. E. 72).
There is yet another question presented under the general grounds of the motion, and it is one that has caused us much difficulty. As a preface to its consideration we should state some additional facts. The plaintiff purchased the automobile on November 6, 1920, from a man representing himself as Scott Hughes.
It is insisted on behalf of the plaintiffs in error that the evidence demanded a finding against the plaintiff’s claim of title, and that the title to the automobile was in a third person, namely the insurance company. Generally, where the plaintiff in a trover
Title to the property having been shown to have been at one time in Morris Miller, a presumption of his ownership would continue until the contrary appeared. Coleman v. Rice, 105 Ga. 163 (31 S. E. 424); Russell v. Morris, 134 Ga. 65 (2) (67 S. E. 404); Sasser v. Byrd, 8 Ga. App. 824 (70 S. E. 157). There is another rule, however, to the effect that the law presumes that title follows the possession of property, and this presumption applies to personalty as well as realty. McLendon v. Horton, 95 Ga. 54 (2) (22 S. E. 45); Reid v. Bull, 25 Ga. 28 (3); Mashburn v. Dannenberg Co., 117 Ga. 567 (4), 579 (44 S. E. 97); Burt v. Rubley, 113 Ga. 1144 (1) (39 S. E. 409); Harris Loan Co. v. Elliott, 110 Ga. 302 (3) (34 S. E. 1003); Collins v. Taggart, 57 Ga. 355, 356; Culpepper v. Culpepper, 18 Ga. App. 182 (3) (89 S. E. 161); Branch v. American Agricultural Chemical Co., 22 Ga. App. 52 (2) (95 S. E. 476); Cox v. Adams, 2 Ga. 158 (2); Mitchell v. Georgia & Alabama Railway, 111 Ga. 760 (supra). “Generally a deed is not necessary to convey titles to personalty.” Civil Code (1910), § 4186. Thus,
The mere act of impeachment, however, could not establish a substantive fact. Central Railroad Co. v. Mallsby, 90 Ga. 630 (4) (16 S. E. 953); Georgia Railroad Co. v. Andrews, 125 Ga. 85, 87 (54 S. E. 76); Stallins v. Southern Ry. Co., 140 Ga. 55, 57 (78 S. E. 421). The case should be considered, therefore, merely as if Miller had never testified. The jury having had the right to discard his evidence in toto, and it appearing by the verdict that they did so discard it, we should pass upon the question as to whether the verdict was authorized just as though we found no testimony from him in the record. This leaves the case exactly where it was before the defendants introduced him. We have seen that at that point there was a presumption that the title passed out of him and through Scott Hughes into the plaintiff Godby along with the possession of the automobile. The defendants having failed to carry the burden,—that is, the evidence which they offered for that purpose having been wiped out,—the presumption in favor of the plaintiff continued. That presumption being that Miller had parted with his title not later than November 6, 1920, before the execution of the papers to the insurance company on the following December 27th, it results that these papers gave the insured nothing, and the attempt on the part of the defendants to assert
There are certain other facts which are material to be examined in connection with the matters discussed in the preceding paragraph. We have thus far omitted them for the purpose of clarity. The plaintiff testified: “The man I bought the car from produced a bill of sale from John M. Smith. . . It seems there had been a car bought from one party and delivered to another. He brought and purported to give me the original bill of sale from John M. Smith Company. He also gave me a bill of sale himself at the time I delivered the check for the car.” It appears that the original and true bill of sale issued by John M. Smith Company to Morris Miller was attached to the proofs of loss and remained thereafter in the possession of the insurance company. What Hughes claimed to be a bill of sale from John M. Smith Company must, therefore, have been a forgery. This document is not shown in the record, and we are unable to determine whether it purported to convey the property to Scott Hughes or to some other person. It is inferable from the testimony of the plaintiff that the grantee therein was some other person. However, in our view, the result of the case would not necessarily be different whether the grantee was Scott Hughes or some one else.
The question now is, whether or not the presumptions in favor of the plaintiff which we have alluded to in the preceding paragraph were conclusively rebutted by the fact that Hughes delivered along with the automobile a spurious bill of sale. In other words, did this fact impeach the presumption to which the plaintiff otherwise would have been entitled, and leave intact the other presumption that the title remained in Morris Miller, in the absence of anything to the contrary ? We must remember that we are still to consider the case as if Morris Miller had never “testified. Thus, we have Miller in the possession of the car at one time, and it is next seen in the possession of Hughes. The inference is authorized, therefore, that the property passed directly from Miller to Hughes, there being no evidence of intermediate possession by any one else. If this be true, they at some time came together and consummated a transaction with reference to the automobile, unless it was stolen. We have attempted to show that under the facts as dealt with in
Hnder the circumstances, we do not think that the presumption which otherwise would have existed in favor of the plaintiff was necessarily negatived by the fact that his vendor delivered to him a forged bill of sale. The jury in their rightful province were authorized to believe that Scott Hughes procured the automobile directly from Morris Miller, and that the instrument in question did not show a theft, but was a device concocted between them for the double purpose of concealing Miller’s prior ownership, making it safer for him to represent that it had been stolen, and of satisfactorily meeting whatever inquiry a purchaser might make as to Hughes’ right to sell, and that the genuine bill of sale was retained for the purpose of delivery to the insurance company. They were authorized thus to find that the forged bill of sale was the result of a mere collusion between Miller and Hughes to defraud the insurance company, and, in spite of it, to conclude that the true legal title was transmitted to the plaintiff in the sale to him by Hughes.
The case would not be weaker for the plaintiff if the grantee in the instrument was some one other than Hughes himself.
The evidence authorizing the inference that both Hughes and Miller were characters who would not hesitate to engage in a fraudulent enterprise, and that there was no intermediate holder,
Let it be understood that we do not hold in this connection that proof that the two men were of bad character would be sufficient, without more, to establish the existence between them of an unlawful agreement to make a covert disposition of the automobile in order that one of them might defraud the insurer by a false claim of loss. We saw in the preceding division that in the absence of the fraudulent bill of sale the inference was warranted (even demanded when we also omit the testimony of Miller) that the title to the property was in the plaintiff. What we hold here is, that this inference was not conclusively rebutted by the presence of that document, but that the facts touching the same, in view of all the circumstances, could have been explained by the jury in some other way. Thus, the finding of the existence of such conspiracy, which we think was authorized upon a consideration of all the evidence, depends not alone upon the facts first referred to in this immediate connection, but upon those together with the inference which we had observed to have been authorized in favor of the plaintiff’s claim of title, before we entered upon a discussion of the effect of the forged bill of sale.
The position of the defendant in error may be strengthened by the additional facts that Hughes advertised the automobile for sale in a newspaper in the city where Miller resided and within a very few days after the date of the alleged theft; that he demonstrated it upon the open streets shortly thereafter in the town of College Park; that he delivered what appeared to the plaintiff to be the original keys to the ear, and that Miller, when making the proofs of loss, on being called upon by the defendants, then as insurance agents, to deliver the keys, represented that he had them and would prodlice them, but never did.
What is said above practically disposes of one of the grounds of the motion for a new trial, in which error is assigned upon the following charge of the court:' “If you believe, under the evidence, that the car was not stolpn, but was sold to the plaintiff with the knowledge and consent of Morris Miller in November, 1921, then Morris Miller would have no title or interest in the car and could not have conveyed any right to the insurance company or
The decisive issue in the case was whether the car was stolen. If it was, the insurance company had the title thereto. If not, the title was in the plaintiff. Perhaps the possession of the automobile by Hughes would not raise a presumption that he was the agent of another to sell it, but merely that he himself was the owner. If he had bought it from Miller, his resale would necessarily be by Miller’s consent, though not perhaps with his knowledge. If Hughes procured the automobile from Miller by purchase, actual knowledge by Miller of the resale would be immaterial, and an unauthorized reference thereto in the charge would be harmless. The conclusion is demanded that if the car was not stolen, there was a valid sale to the plaintiff. The excerpt complained of having instructed the jury that, if they believed the car was not stolen, then Miller would have no title or interest therein and could not have conveyed any right to the insurance company, the defendants were not prejudiced by the instruction that, as a condition to this result, the car should have been sold to the plaintiff with the knowledge and consent of Miller.
In saying in the preceding paragraph that the jury were authorized to infer the existence of a collusion between them, we referred to a possible scheme by the execution of which Miller would be enabled to collect unjust money from the insurance company, and not tp a state of facts establishing the relation of principal and agent for the sale of the automobile. It may be that the only inference beneficial to the plaintiff to be drawn from the mere fact that the possession of the ear, which at one time was in Miller, subsequently passed to Hughes was that Hughes thereupon became the owner authorized to sell in his own right, and not as agent for another, and that the charge complained of was inaptly intended to submit the question of agency. Even in this view, we would think the charge harmless for the reasons given.
Error is also assigned upon the following charge of the court: “By conversion is meant any wrongful act of dominion in denial of the plaintiff’s right. That is to say, if the defendants did any act negativing or inconsistent with plaintiff’s possession, the plaintiff can recover against them.” The only complaint upon this
The court charged the jury as follows: “Defendants claim that this car was sold by John M. Smith Company to Morris Miller, that this car was stolen from the possession of Morris Miller, that an insurance company of which defendants were agents paid the loss under provisions of a theft policy theretofore issued by such insurance company to Morris Miller, and that at or about the time of such payment the insurance company took from Miller a contract subrogating the insurance company to the rights of Miller, if he had any rights in this car. The right of subrogation does not exist until there arises a legal duty to pay a loss on the part of the person or corporation claiming to be subrogated. The right of subrogation would give to the insurance company just such right, or the person acting for it, such rights in the car as Morris 'Miller had. . The burden would, be upon the defendants, on the issue oil
There is no exception upon the ground of a misstatement or of an insufficient statement of the defendants’ contentions, nor is there an assignment upon the failure of the court to instruct the jury in reference to the insurance company’s claim based upon the stipulation whereby Miller, in consideration of the payment of the loss, expressly invested the insurance company with the title to the automobile. There was no harmful error in the charge for any reason assigned, since the insurer did not acquire title either by subrogation or conveyance, unless the automobile had been stolen, and since the charge instructed the jury that “the right of subrogation would give to the insurer just such right, or the persons acting for it, such rights in the car as Morris Miller had.” While the insurance company would have had the right to obtain the title to the automobile by express conveyance irrespective of subrogation (see Irvin v. New Brunswick Fire Ins. Co., 32 Ga. App. 182, 122 S. E. 710), the paper which it took for that purpose conveyed nothing if the car had not been stolen but had previously been sold and conveyed by Morris Miller to some one else. So that, whether the insurance company claimed by an express conveyance or by the right of subrogation, legal or conventional, the burden was upon the defendants to establish that the car was stolen, in order to maintain the defense that the title thereto was in the insurance
This and the other rulings made above are controlling of an assignment upon a further excerpt from the charge of the court, as made in the fourth and only remaining ground of the amendment to the motion for a new trial.
The evidence authorized the verdict and for no reason urged was it error to overrule the motion.
Judgment affirmed.