Willis v. Midland Finance Co.

Nichols, Judge;

1. The one special ground of the amended motion for new trial complains that the trial court erred in failing to admit certain evidence. It is unnecessary to pass on this ground of the amended motion for new trial inasmuch as it appears that the defendant, Julia Mae Willis, testified to the same facts and no objection was made. See in this connection, Ray v. Hutchinson, 27 Ga. App. 448, 449 (108 S. E. 815), and Jones v. State, 27 Ga. App. 574 (4) (109 S. E. 515). If the exclusion of the evidence was error it was harmless error where uncontradicted evidence to the same effect was admitted without objection.

2. The defendant, Julia Mae Willis, relies on the line of cases exemplified by Robbins v. Welfare Finance Corp., 95 Ga. App. 90 (96 S. E. 2d 892), which hold that, where a party has lawfully acquired possession of property, before trover will lie, there must have been a demand for the property by the plaintiff and a refusal to deliver such property by the defendant.

The evidence in the present case shows that a demand was made on the defendant Julia Mae Willis for the property and that later the present action was instituted. The defendant contends that this evidence was insufficient to show a conversion inasmuch as the evidence did not show a refusal on her part to deliver the personalty.

While it is true that the demand and refusal are prerequisites to a trover action where the defendant has obtained possession of the property lawfully, where a demand is shown and period of time elapses, in the present case a few days, and the trover action is then begun, it is a question for the trior of facts to determine if the demand was refused. The evidence here presented authorized a finding that the demand was made and that the defendant, Julia Mae Willis, refused to deliver the personalty.

In Hodges v. Cummings, 115 Ga. 1000 (42 S. E. 394), the Supreme Court held that, where a person comes into possession of personalty lawfully, proof of a demand by the plaintiff, the owner, and -a refusal to deliver by the defendant, constitutes a conversion.

The defendant, Julia Mae Willis with her husband, gave the plaintiff a bill of sale to secure debt on certain items of personalty, therefore it cannot be seriously contended that the defendant, Julia Mae Willis, did not, prior to the institution of the trover action, have possession of such personalty. •

Although the defendant pleaded and presented evidence that the property, the automobile, was in the “custody of the law” at the time of the demand, this alone was not a defense to the trover action.

In support of this contention the defendant cites cases where trover was instituted against an officer who held the property under authority of law. In those cases the “right of possession” was shown to be in such officer, and of course the trover could not lie against him so long as he had the “right of possession.” Also cited is Peoples Bank v. Pierce, 143 Ga. 563 (85 S. E. 860), where the plaintiff foreclosed a mortgage and had the property levied on and, while the sheriff held the property, instituted a trover action against the defendant for the same property. In that case trover would not lie against the defendant.

In the present case the automobile was impounded when it was abandoned by the driver after it had been involved in a collision, and while the “right of possession” may have been in the authorities who had impounded it, this evidence would not negative the conversion by the defendant Julia Mae Willis.

3. The contention that the alternative verdict or judgment is contrary to law is without merit, and the trial court did not err in denying the defendant’s motion for new trial as amended.

Judgment affirmed.

Carlisle and Quillian, JJ., concur. Townsend, J., concurs specially. Felton, C. J., and Gardner, P. J., dissent.