National Bank v. Cut Rate Auto Service, Inc.

Evans, Judge.

Moses Long bought a Cadillac automobile and financed the purchase with National Bank of Georgia, which took title as security for payment of the loan. Long placed the automobile in the hands of Cut Rate Auto Service, Inc. for repairs, and Cut Rate made repairs thereto, which it contends were of the value of $4,100.

National Bank of Georgia sued Cut Rate in trover for the automobile, and alleged its value to be $6,600. Cut Rate defended and contended, inter alia, that it had not been paid for the repairs and that it had a legal right to retain possession of the car; and that the value of the car was not $6,600 as alleged, but was only $600. It was proven at the trial that the car had been damaged by Cut Rate while in Cut Rate’s possession, after the repairs were made, and before Cut Rate filed its answer to the trover suit. The car had been wrecked, demolished, and reduced to apile of junk, or a car with junk value only, amounting to $600. The collision was caused by one of Cut Rate’s wreckers backing into the Cadillac on Cut Rate’s premises where it had parked said Cadillac.

The case proceeded to trial before the judge without a jury, who made findings of fact and conclusions of law, and fixed the damages from the date defendant filed defensive pleadings through the date of trial, and found that the highest damages proven within those dates was $600, and rendered judgment for plaintiff for that amount, plus $15.41 interest.

Plaintiff appeals and contends the trial judge erred in limiting and restricting his recovery to the highest proven damages between date when defendant filed its answer and until the end of the trial. Held:

1. The only question for decision here is as to whether the trial court properly applied the law and made a correct finding as to damages. Was plaintiff limited to the highest proven value of the car between date of defendant’s answer and the end of the trial, as the trial judge held? If this holding is correct, it means that a defendant, who is sued in trover, may demolish the property after he is sued, and before his answer is filed, and reduce the property to junk, and escape liability for the true value. We do not apprehend this to be the law."... one will not be permitted to profit by his own wrong .’’Fuller v. Fuller, 211 Ga. 201, 202 (84 SE2d 665).

2. The first error by the trial judge was in holding that the conversion did not take place until the filing of defensive pleadings. The law is plain, as is held in C. I. T. Corp. v. Smith, 56 Ga. App. 544, 547 (193 SE 261). "Where a defendant in an action of trover admits in his plea or answer his possession of the property at the time of the action, under an adverse claim of title or right of possession, it is not necessary for the plaintiff to prove a demand and refusal...” Also see Young v. Durham, 15 Ga. App. 678 (5) (84 SE 165), which case is cited by the lower court.

The trial judge incorrectly construed this language to mean that Cut Rate’s adverse claim of possession (eliminating necessity to prove demand and refusal), did not take place until the very moment when the answer was filed. But the answer must be construed in pari materia with the uncontradicted evidence adduced at the trial. The uncontradicted testimony of Alex Parham, manager of Cut Rate, was to the effect that the car was brought in for repairs about one week after January 10, 1973, and thereafter and continuously until the case was tried, Cut Rate had the car in exclusive possession and adversely claimed right of possession against any and all other persons during that entire period. (See deposition of Alex Parham, R. pp. 9-46, and testimony of Alex Parham, Tr. pp. 29-59.)

3. The foregoing disposes of the question of conversion favorably to plaintiff. It was not the destruction and demolition of the Cadillac by Cut Rate which proved a conversion; it was Cut Rate’s retention of possession and adversely claiming the right of possession of the Cadillac from January 17, 1973, until the date of trial in February, 1974. As we have previously stated, this conduct by Cut Rate made it unnecessary for plaintiff to prove a demand for the car; and as is held in Young v. Durham, 15 Ga. App. 678 (5), supra: "The purpose of a demand in a trover suit is to furnish evidence of conversion.”

4. The lower court adjudged that plaintiff was entitled to recover in this case, and from that ruling Cut Rate has not appealed. Thus it is the "law of this case” that plaintiff was entitled to recover and the only question for consideration by the court under this posture of the case is as to the amount of the judgment in plaintiff’s favor. Any consideration of whether or not plaintiff was entitled to a judgment is completely irrelevant and immaterial. See Code § 110-501; Spacemaker v. Borochoff, 112 Ga. App. 512, 515 (145 SE2d 740); Pendley v. Brooks, 119 Ga. App. 268, 270 (166 SE2d 898).

5. There was no duty whatever upon plaintiff to show that Cut Rate’s negligence caused the demolition of his Cadillac automobile. As is held in Division 5, supra, the law of this case is that plaintiff was entitled to recover, and there being no appeal by defendant, he is not entitled to any consideration of that question here. But, suffice to say, if that question were before us, Code § 12-403 shows this was a bailment and that, the "bailee is bound to use ordinary care for the safe-keeping and return of the automobile.” And in Hight Accessory Place v. Lam, 26 Ga. App. 163 (1) (105 SE 872), it is held that the burden is on defendant (bailee) to show the bailed article was not injured by bailee’s negligence, and that bailee used ordinary care and diligence to protect the property from damage or injury. Also see Loeb v. Whitton, 77 Ga. App. 753, 755 (3) (49 SE2d 785). In this case Cut Rate made no showing whatever as to its lack of negligence. Alex Parham, Cut Rate’s manager, testified that one of Cut Rate’s wreckers, driven by one of its employees, was driven into the parked Cadillac; that Cut Rate had parked the Cadillac in position where it was not "relatively visible”; that he could not say whether the driver of the wrecker could have avoided the collision by being careful; that if Parham had been driving, it might have been different. And finally: "Q. You really don’t know if he exercised ordinary care? A. Come to that point, no, I don’t.” (Tr. pp. 30-35.)

If the question of negligence were before us in this case, we would have to hold that the bailee (Cut Rate) did not carry the burden of showing it exercised ordinary care and diligence to protect the bailed property.

6. The lower court erred in its conclusion of law that the value of the car was fixed and limited to the period between date of filing Cut Rate’s answer and date of trial, the effect of which holding was to limit plaintiff’s judgment to the car’s junk value of $600. There was evidence from which the trial court could have adjudged the highest proven value during the conversion to be $7,000 (limited to $6,600 by plaintiff’s pleadings).

Judgment reversed.

Been, P. J., Quillian, Clark and Marshall, JJ., concur. Been, P. J., Clark and Marshall, JJ., concur specially. Bell, C. J., Pannell, P. J., Stolz and Webb, JJ., dissent. Submitted May 30, 1974 Decided December 4, 1974 Rehearing denied December 20, 1974. Schwall & Heuett, Stanley M. Lefco, for appellant. Horton J. Greene, for appellee.