Childs v. LOGAN MOTOR COMPANY
Childs v. LOGAN MOTOR COMPANY
Opinion of the Court
The first special ground contends that a certain document was erroneously admitted in evidence over the timely objection of the defendants. The document objected to is captioned, “Manufacturer’s Statement of Origin to a Motor Vehicle.1” This document was a certification that the new car described therein was transferred on February 6, 1958, from the Ford Motor Co. to the plaintiff. The document goes on to describe the car as a 1958 Ford Fairlane 500 Tudor, 8-cylinder, with a shipping weight and horse power designated, and gives
The witness for the plaintiff testified that he had been employed by the plaintiff corporation for eight years, during the past five of which he had been sales manager; that he was familiar with the automobile described in the petition; and, further, that the document was received by the Logan Motor Co. from the Ford Motor Co. in the normal course of its business. This evidence was uncontradicted. This identification renders the document admissible in evidence under Code Ann. § 38-711. It is particularly to- be noted that the statute itself provides
The second special ground of error assigned in the motion for a new trial takes exception to the following charge to the jury on the measure of damages: “I charge you, gentlemen of the juiy, that the plaintiff would be entitled to recover the highest market value of the property in question between the date the plaintiff filed its petition and this date. The burden is on the plaintiff to establish the market value of the property in question by a preponderance of the evidence.” It is contended that this charge is erroneous and not sound as an abstract principle of law, and that the charge was misleading to the jury in that the testimony of two of the defendants as to the market value of the automobile related to its market value twelve days prior to the date the plaintiff filed the petition but after the defendants had come into the possession of the automobile, and that this charge misled the jury into disregarding their opinion on market value which was proper and should have been considered by the juiy. Tire record reveals that the two defendants testified that they purchased the automobile on September 3, 1958, from the person who was.identified elsewhere in the evidence as having stolen it from the plaintiff. One defendant, Loyd Childs, testified that he gave this person a check for a thousand dollars and an older car which had a market value of three or four hundred dollars. This testimony obviously relates to the value of the car on September 3, 1958. He further testified that he expected to make a profit above the price he paid for the car. Mr. Ty Childs, another defendant, testified that he saw the vehicle about fifteen minutes after it was traded
Considering the instruction to the jury, it is obvious that it more narrowly than is proper restricted the time within which the plaintiff could fix the measure of damages, and, further, it postponed the period for fixing damages to a later date than the law of conversion generally allows. Thus, it erroneously confined the plaintiff to a shorter span and a later period in time from which to choose a value of the property converted.’ It is apparent that the charge was both erroneous and harmful to the plaintiff. This being so, can it be said that it was also injurious to the defendant, who is complaining of the error? “There was no error against the defendant in the charge of the court which instructed the jury that if the conversion was wilful, the plaintiff’s measure of damages would be the market value of the property at the time of the conversion, although it is provided in the Code that in such a case the measure would be the full value of the property at the time and place of demand or suit brought. Proof of a demand and a refusal in a trover suit is only necessary in order to furnish evidence of the conversion, and is not essential to a recovery if a conversion is otherwise shown. . . The defendant was not harmed by an instruction which limited the measure of the recovery to the value of the property at the time of its conversion.” Shealey v. Wilder, 33 Ga. App. 745 (127 S. E. 805). Here the instruction on the measure of damages was harmful to the plaintiff but not to the defendant, who cannot complain.
We turn now to» the general grounds.J The car was described in the evidence and by the witnesses as being a 1958 model Ford Tudor Fairlane 500, converted in 1958, a few months after the manufacturer had shipped it to the plaintiff. The “expert” witnesses varied in their valuation of the car from $300 to» $2,700 (in Washington, D. C.), and the petition prayed for damages in the amount of $3,200. The defendants admitted paying $1,000 ca'sh plus a motor vehicle worth $300 to $400 and expected to» make a profit on the transaction. Six pictures of the
Judgment affirmed.
Dissenting Opinion
dissenting. In my opinion, there is no evidence in this case which would authorize a verdict of $1,600. An examination of the evidence will show that Mr. B argano did not testify as to the value of the automobile involved in this action. His testimony as a whole can not be construed in any other way except that he only testified as 4o the value of a car similar in model to the one involved in this case in Washington, D. C., assuming it was in good condition. The testimony as to the fact that the defendants bought the automobile
The verdict in this'case is as unsupported as a verdict for $25 would have been. See Sammons v. Copeland, 85 Ga. App. 318 (69 S. E. 2d 617); Elder v. Woodruff Hardware Ac. Co., 16 Ga. App. 255 (85 S. E. 268).
Reference
- Full Case Name
- CHILDS Et Al. v. LOGAN MOTOR COMPANY
- Cited By
- 19 cases
- Status
- Published