Lead Opinion
This case is here on certiorari. Maryland Cas. Ins. Co. v. Welchel,
The basic facts of this case are that the appellee Welchel, d/b/a Marietta Wrecker Service, received instructions to tow a truck having transmission trouble to Coursey’s Transmissions. However, the driver dispatched by the appellee mistakenly, but in good faith, went to the wrong location and towed to Coursey’s a truck insured by the appellant Maryland Casualty Insurance Company. While at Coursey’s, this truck was stolen. An automobile proof of loss, which contained a subrogation clause, was executed by the insured. The appellant paid the theft loss, in return for which the insured executed a loan receipt which also cоntained a subrogation clause. However, the insured subsequently brought suit against the appellee for the loss. This was done without notice to the appellant and without the appellant’s consent. The suit was settled, and a consent judgment wаs rendered. As previously stated, the insured executed a general release.
The appellant then instituted this action, in which recovery was sought against the appellee for conversion of the truck and for tortious interference with the appellant’s subrogation rights. A jury trial was convened, but the trial court granted the appellee’s motion for directed verdict on the ground that there was no evidence that the theft of the truck was reasonably foreseeаble by the appellee, and, therefore, any conversion of the truck by the appellee did not constitute the proximate cause of the theft loss.
On appeal, the Court of Appeals held that, although the trial court did nоt err in granting the appellee’s motion for directed verdict on the conversion claim, the court did err in granting the appellee’s motion for directed verdict on the subrogation claim. As to the conversion claim, the Court of Apрeals reasoned that, since the appellee did not assert any right of ownership to the truck, it was chargeable with trespass and not conversion, but, in any event, under the evidence the theft was not reasonably foreseeable and, therefore, consti
We agree with the Court of Appeals that the trial court did not err in granting the appellee’s motion for directed verdict on the appellant’s conversion claim, although for reasons different from those given by the Court of Appeals. However, we hold that the subrogation claim was dependent upon the conversion claim, and, for this reason, the trial court was also cоrrect in granting the appellee’s motion for directed verdict on the subrogation claim. Consequently, the judgment of the Court of Appeals is affirmed in part and reversed in part.
1. “[T]rover in Georgia embraces the common-law actiоns of trover, detinue, and replevin. At common law, trover was an action for damages for conversion of personalty; replevin was an action to recover specific chattels unlawfully taken and wrongfully withheld; while the actiоn of detinue was allowable to recover specific chattels wrongfully retained, though lawfully acquired. In replevin the gist of the action was the wrongful taking of the chattels, in detinue the unlawful detention of the chattels. 3 Bl. Com. 146 et seq.; I Chitty’s Pl. (16 Am. ed.) 181; seе also Mitchell v. Georgia & Alabama Ry.,
“Any unlawful abuse of or damage done to the personal property of another constitutes a trespass for which damages may be recovered.” OCGA § 51-10-3. The action of trespass to personalty is “concurrent with” the aсtion of trover and conversion, although the two actions are not “entirely coextensive.” 28 EGL 79, Trover & Conversion, § 2 (1985 Rev.). “Trespass will doubtless lie for acts of interference with goods where trover will not.... The chief principle in the field of conversion is undoubtedly found in the idea of interference with the dominion which is incident to the general or special ownership of chattels. This conception is entirely different from the idea of damage to the property itself which is inseparable from trespass . . . .” Id.
“ ‘ “Any distinct act of dominion wrongfully asserted over another’s property in denial of his right, or inconsistent with it, is a convеrsion. It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner’s right, or in a manner inconsistent with it. It is in law a conversion whether it be for his own or any other’s use . . .” ’ James v. Newman,
Consequently, in order to be chargeable with conversion, technically it is not necessary that the defendant аssert any right of ownership over the property; it is sufficient if the defendant wrongfully assumes dominion over the property inconsistent with the owner’s right. See Farkas v. Powell,
“ ‘Any distinct act of dominion wrongfully asserted over one’s property in denial of his right or inconsistent with it, is a conversion.’ Rushin v. Tharpe,
“It is immaterial that such dominion was exercised in good faith, for ‘Whoever meddles with another’s proрerty, 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 & Miller v. Wilson,
However, we do agree that where, as here, the defendant is chargeable with conversion by reason оf the fact that he wrongfully assumed possession of the property and moved it from one location to another where it was stolen by a third party, the defendant’s conversion of the property is not the proximate cause of thе loss unless the intervening, criminal act was reasonably foreseeable. See OCGA § 51-12-8; Blakely v. Johnson,
We agree with the trial court and the Court of Appeals that there is no evidence here that the intervening, criminal act was reasоnably foreseeable.
2. However, we disagree with the Court of Appeals’ holding that the appellant’s claim against the appellee for tortious interference with its subrogation rights is not dependent upon the appellee’s liability for the underlying tort.
To employ an oft-cited metaphorical expression, subrogation places the subrogee in the shoes of the subrogor. Consequently, the rights to which the subrogee succeeds are the same as, and no greater than, those of the subrogor; therefore, the subrogee’s rights are subject to any limitations incident to them in the hands of the subrogor, and subject to any defenses that might have been urged against the subrogor. Bickerstaff v. Ellis,
In Vigilant Ins. Co. v. Bowman, supra, the Court of Appeals held that whеre an insured had been indemnified for a loss by his insurer, and where the tortfeasor’s insurer thereafter settled the claim with the insured and obtained a general release with knowledge of the insurer’s subrogation rights, since the insurer did not consent to the settlеment, its subrogation rights against the tortfeasor were not defeated thereby. In Unigard Ins. Co. v. Zimmerman’s, Inc.,
Judgment affirmed in part and reversed in part.
Dissenting Opinion
dissenting.
The majority would relieve Marietta Wrecker Service from liability for loss of the truck on the basis the theft of the truck was not reasonably foreseeable. I do not agree with this view. As between the owner of personal property аnd one who converts that property, under the circumstances of this case, I believe the converter should be held absolutely liable for loss of the property. The law should require it to be returned or its value paid. Questions of negligence or foreseeability should not affect the outcome.
I am authorized to state that Presiding Justice Clarke and Justice Hunt join in this dissent.