Lead Opinion
The question in this case is whether a plaintiff is entitled to recover under a detinue count and counts in trover and trespass joined in a bill of complaint. Are the recoveries in the same action totally inconsistent and mutually exclusive? We answer in the negative.
The facts of the case are not overly complex. In February, 1969, Joseph Wallace purchased a 1969 Volkswagen convertible from Roebuck Auto Sales. Apparently, the automobile was bought for Wallace’s daughter, Mary Emily, to use. In June, 1969, Mary Emily wrecked the vehicle, and it was returned to Roebuck for repairs. The repairs were made and after someone in the Wallace family paid the $100 deductible under the insurance policy
In November, 1969, Roebuck sent the plaintiff a certified letter, return receipt requested, threatening legal action unless the bill was paid by November 24, 1969. There was evidence that Mrs. Wallace then had conversations with the defendant’s agents, and told them she had been dissatisfied with the work done on the car and that the check would be withheld until it was done properly. The car had been taken in for various small repairs between the major repair and the certified letter of November, 1969. In any event, there is no indication that anything else transpired between the parties until February, 1971. On February 19th, Wallace’s daughter, Mary Emily, drove the convertible into the defendant’s service department to have the windshield wipers repaired. When the work on the wipers was completed, Miss Wallace was presented with a bill for $13.-72, with the following addendum, “Old Bill Due $579.49 [sic].” She was informed by the service manager of Roebuck that she would not be given the automobile until both of these amounts had been paid. Miss Wallace became very angry and supposedly threw an ash tray at the service manager. Thereupon she called her mother, who instructed her to call the police. The police arrived, but declined to get involved, save for transporting Miss Wallace to her home.
Wallace filed his complaint on February 24, 1971, in four counts. Count One was in statutory detinue. Count Two was in trover and conversion, claiming damages in the amount of $50,000. Count Three was in trespass to chattels and claimed $50,000 damages. Count Four sounded in trover or trespass to chattels and damages of $50,000 were claimed in this count. There was no demand for punitive damages. Wallace filed a replevin bond and had possession of the car at the time of the trial.
In his instruction to the jury, the trial judge stated that if the jury found for the defendant under County One, it was not to consider the other counts. However, if it found for plaintiff under Count One, then it was free to consider Counts Two, Three and Four. The trial judge also instructed the jury that it would be proper to award punitive damages under the last three counts, if it felt- that defendant not only acted wrongfully, but did so in a willful or malicious manner, or under circumstances of aggravation. Counsel for defendant made no objection to any part of this oral charge at that time.
The jury returned two verdicts. It found for the plaintiff under Count One. This entitled Wallace to the car plus $130 which was the stipulated reasonable hire for the car during the period of its detention. This is one of the possible recoveries in statutory detinue. There appears to be no consideration of the other type recovery, “alternate value,” in view of the fact that Wallace already had the car at the time of the trial. In addition to the car and $130, the jury found for the plaintiff on Counts Two, Three, and Four, and assessed his damages in the amount of $10,000. No indication was given as to what portion of this sum constituted compensatory damages and what constituted punitive damages.
The trial court entered a judgment on both verdicts and soon thereafter the defendant paid the $130 into court in satisfaction of the judgment under Count One. Thereafter, Roebuck made a post-judgment motion to have the $10,000 verdict stricken or otherwise satisfied by reason of the
There are five assignments of error, all predicated upon the trial court’s overruling of the motions above. All of the assignments stand upon the basic principle that once the plaintiff recovered the car under Count One, any recovery in conversion or trespass under the other counts of the complaint was improper and inconsistent as a matter of law.
In conversion the recovery traditionally sought is the fair value of the chattel at the time of conversion, pl'us interest. This is in effect a “forced sale” of the property. Industrial Savings Bank v. Greenwald, 229 Ala, 529,
We will begin by stating that the fact that Wallace recovered the property prior to the suit should in no way affect his right to bring an action for conversion. That tort is complete when the chattel is converted. A recovery of the property does not amount to a waiver of any right of recovery for conversion. This appears to be the rule whether the property is surrendered voluntarily or through resort to legal action. See Prosser on Torts, 3rd Ed., p. 98, 1964, where it is said:
“In any case, return of the chattel, whether consented to by the plaintiff or compelled by the court, does not bar the action, but goes merely to reduce the damages.”
Many of our cases say that prior return of the property to the plaintiff does not bar a suit for conversion. See Renfro’s Adm’x. v. Hughes,
As we understand the gist of Wallace’s argument, he contends there is no inconsistency in his recovery because he was entitled to receive some damages for the mere interference with his right to possession, whether in trover or trespass. In Stallworth v. Doss,
“It is further contended that there was not under the case here presented a conversion at all. We are not persuaded that the law of Alabama supports this proposition. As noted in Long-Lewis Hardware Co. v. Abston,235 Ala. 599 ,180 So. 261 ,
“ ‘It has been held by this court that “the fact of conversion does not necessarily import an acquisition of property in the defendant.” Howton v. Mathias,197 Ala. 457 ,73 So. 92 , 95. The conversion may consist, not only in an appropriation of the property to one’s own use, but in its destruction, or in exercising dominion over it in exclusion or defiance of plaintiff’s right . . .’
“We see nothing in our cases which requires in a conversion case that the plaintiff prove that the defendant appropriated the property to his own use; rather, as noted in the cases referred to above, it is enough that he show that the defendant exercised dominion over if in exclusion or defiance of the right of the plaintiff.”
In a sense then, the plaintiff’s recovery under the detinue count and the trover and/or trespass count remedied two distinct wrongs arising out of the same occurrence. The above cases indicate there can be a recovery in trespass or trover in such a way as not to amount to a divestiture of title from the original owner to the defendant. This cures any difficulties of who would have title as previously discussed, and forming the basis of the inconsistency argued by the defendant.
Thus, Wallace was entitled to recover at least nominal damages for the act of interference with his right to possession of the car either in trover or trespass. This is separate and distinct from the recovery of the car in detinue.
From the record it appears that Roebuck interposed no objection to the trial court’s instructions that a proper recovery could be had under Count One and any or all of the other counts. This charge became the law of the case and the jury was bound to follow it whether it was a correct statement of the law. Tombrello v. McGhee,
The question of excessive damages was not assigned as error and we will not discuss it. Crossley v. Davies,
Assignment Five deals with the overruling of the motion for new trial. It was assigned but not argued in brief. 'It is therefore deemed waived. Harris Paint Co. v. Ripps,
Affirmed.
Concurrence Opinion
(concurring specially).
I think trespass, trover and statutory detinue all proceed upon the theory of continued ownership in the injured party, and are not inconsistent remedies. Our statutory action of detinue does not provide for the recovery of punitive damages which may be awarded as a consequence of malicious acts attendant upon a wrongful seizure and dispossession of property. Cf. Wardman-Justice Motors v. Petrie,
I believe that Alabama’s statutory detinue action limits the damages to the “property sued for, or its alternate value, with damages for its detention to the time of trial.” Title 7, Section 921, Code of Alabama, 1940. Therefore, I do not think the plaintiff was required to make an election of remedies here.