Hughes v. Al Grider, Inc. ( 1958 )

Townsend, Judge,

concurring specially. W. C. Davenport, manager for the plaintiff corporation, testified that he purchased from Orlando Auto Auction in August, 1956, a 1955 Ford, Fair-lane club- sedan, motor number U5AT149202 (which is the same description contained in plaintiff’s petition except that instead of “club sedan” the words “two-door automobile” are used); that the car was feloniously removed from the lot by a prospective purchaser who drove it out and did not return it; that on information received from the F.B.I. they learned the automobile was later found on the defendant’s used car lot. Ather Hughes, a defendant, on cross-examination stated that his firm sold to a Mr. Goggins a 1955 Ford which, on a previous trial of this case, he had testified was a two-door automobile bearing the same motor number sworn to by the plaintiff. A bill of sale from the defendants to Goggins introduced in evidence without objection describes this automobile as a 1955 -2-door Ford automobile, motor number U5AT149202, the same motor number. These facts are sufficient in the absence of any testimony to the contrary to identify the automobile stolen from the plaintiff as being the automobile in the possession of and sold by the defendants. Undisputed proof that the automobile was stolen from the plaintiff plus undisputed proof of identity of the vehicle in the defendant is enough to demand a verdict in favor of the plaintiff for some amount. However, I do not agree with divisions 3 and 4 of the opinion as written because, if such verdict were not demanded, erroneous introduction of documentary evidence showing ownership in the plaintiff would be harmful error.

2. There was evidence that in August, 1956, the automobile was worth $1635; that between August and September it would not vary $15 and between September and the time of trial it would vary a hundred dollars. The verdict for $1265 is accordingly also supported by evidence.