220 Miss. 740 | Miss. | 1954
Appellee, M. L. Wilkinson, brought this suit in the Circuit Court of Humphreys County against appellant, The Potomac Insurance Company of the District of Columbia, hereafter referred to as Potomac. It was brought in June 1952 for the willful conversion by Potomac of appellee’s automobile. Damages were claimed in the amount of $800, the value of the car, and $2,000 punitive damages. The jury rendered a verdict for Wilkinson for $800, from which this appeal was taken.
The facts upon which the issues in this case are based began in 1949. Wilkinson owned a 1948 Chrysler New Yorker automobile, upon which Potomac had written a
On the second trial of Cause No. 1959, after it was remanded, the jury returned a verdict of $1,184.72 on the insurance contract for repairs and damages to the ear. This judgment was dated July 8, 1952. It was paid in full by the insurance company.
On June 5, 1952, a little over a month before Wilkinson obtained his judgment of July 8, 1952, in Cause No. 1959 in the suit on the contract, Wilkinson brought the present suit against Potomac in the Circuit Court of Humphreys County. This was a tort action for conversion of the car by Potomac. The declaration charged that on June 20, 1949 (the collision occurred on May 15, 1949) the plaintiff owned the automobile which had been in the collision and was worth in its damaged condition at-that time the sum of $800; that on that date Potomac willfully and maliciously took and carried away the car from plaintiff’s possession without his consent. That although plaintiff had often requested defendant to return the car, defendant had not done so; and that the plaintiff had been deprived of its possession and use since that time. Hence Wilkinson asked for a judgment of $800 for the value of the car, and punitive damages of $2,000.
Potomac’s answer denied the averments of the declaration. It contained a separate plea of res judicata, setting up that previously plaintiff in Cause No. 1959 had obtained a judgment on plaintiff’s cause of action against defendant, which had been paid and satisfied by defendant; and that the same issues were there involved as are involved in the present case. Defendant also pleaded in bar .of the suit that plaintiff had split his cause of action, that he had two inconsistent causes of action, both arising out of the alleged breach of con
The case then proceeded to trial. Plaintiff offered three witnesses, the defendant none. Wilkinson testified that after the accident on May 15, 1949, the Webb Motor Company, which sold him the car, took it to their garage in Belzoni at his request. An agent of Potomac came to see plaintiff about an adjustment. Plaintiff told him that the car was not anything but junk, that he did not want it; that the agent could “take it and sell it for junk”, which the agent tried unsuccessfully to do. After about a month and a half had transpired, during which plaintiff and defendant could mot agree upon an adjustment, Wilkinson said that Potomac’s agent picked up his car and took it to Greenwood without his consent. He had told the agent that he did not want the car repaired. After it had been taken to Greenwood, Wilkinson drove to that city and found it at the Delta Chevrolet Company. The foreman there told him that Potomac had left it. He then went to Greenville to the office of Sevier, also an agent of the company, where he was told that the agent would have to take it up with Potomac. Wilkinson testified that his car has never been returned to him by Potomac; and that he wrote the Company requesting its return, on September 30, 1.949, and February 15, 1950. The last letter was to Potomac’s General Agents in New Orleans. The car was taken from Belzoni without appellee’s permission and knowledge. In response to plaintiff’s letter of February 1950, the New Orleans General Agents of Potomac wrote that the company had decided that it had no liability in this
W. G. Bryan, a shop foreman at the Ford place in Belzoni, said that he looked at the car after the wreck and that its value was around $1,000. But he admitted that he made no estimate of the damages. R. L. Nelson was working in Belzoni at the Webb Motor Company when the damaged car was brought there. He made an estimate of its value at that time, after the accident, concluding that it was then worth about $1,400 or $1,500. On this evidence the case was submitted to a jury, which returned a verdict of $800, upon which the judgment of July 14, 1953, was based.
The evidence supports the jury’s finding of conversion of the car by Potomac. There is no substantial contradiction of appellee’s testimony that Potomac wrongfully took the car from his possession in Belzoni, moved it to Greenwood, and stored it in the garage in that city; that this taking was done without appellee’s knowledge or consent; and that although requested to do so, Potomac has failed and refused to return the car to appellee’s possession in Belzoni, where appellant had obtained
However, the facts do not warrant that conclusion. Appellee had, we think, two causes of action; one on the insurance contract for damages to his car on May 15, 1949, which was satisfied by a payment of the judgment in Cause No. 1959; and the second, an action for conversion of his car which occurred over a month after the collision. These are two separate and distinct causes of action. The conversion damages did not grow out of or proximatelv result from the claim under the in
Home Insurance Co. v. Tate Mercantile Co., 117 Miss. 760, 78 So. 709 (1917), relied upon by appellant, is clearly distinguishable. There the claimed damages resulting from the insurer’s delay in payment of the loss grew out of the insurance contract and the fire loss under it. But here the conversion of the car was a separate and independent act, unconnected in terms of causation with the insurance. Similar distinctions can be made as to Agnew v. McElroy, 10 S. & M. 552 (Miss. 1848), and Perry v. Lewis, 49 Miss. 443 (1873). The judgment is therefore affirmed on both direct and cross appeals.
Affirmed on direct and cross appeals.