Opinion
No. 7057.
May 22, 1952.
APPEAL FROM THE CIRCUIT COURT, JASPER COUNTY, WOODSON OLDHAM, J.
Burden Shortridge, Joplin, for appellant.
Jim Poynor, Joplin, for respondent.
Action in Replevin for an automobile. At the close of plaintiff's evidence, the court directed a verdict for defendant. It then proceeded to take testimony on the value of the car and the amount of damages. Submitted to a jury, a verdict was returned for defendant, finding the value of the car at $1600 (which defendant elected to take) and defendant's damages for the taking and detention at $400. Plaintiff filed a motion for new trial, which was sustained. Defendant appealed.
Plaintiff's petition, filed February 7, 1951, alleged that it was the "owner and entitled to the immediate possession" of a 1949 Mercury, Six-passenger Coupe, Motor No. 9CM188605, alleging its value at $1439.25. It also alleged the unlawful detention by defendant, that it had been damaged $125 and asserted it would be in danger of losing the property unless taken out of the possession of defendant. A bond was given and the automobile was seized by the sheriff and turned over to plaintiff.
The answer denied the allegations of the petition, claimed the value of the car to be $1750, and that defendant's damages were $750.
Plaintiff's evidence showed that R. E. Cooper, an employee of Jon Jones, Inc., in December, 1950, had sold to defendant a 1949 Mercury, who had given a mortgage on it to Jon Jones, Inc. A photostatic copy of the mortgage was introduced in evidence and attached to it was a certificate of the Recorder of Deeds of Jasper County that it was a true copy of the one on file in the recorder's office. Plaintiff tried to prove that this mortgage had been assigned to it by Jon Jones, Inc., but it developed that any assignment made by Jon Jones, Inc., was in writing, and, if made to plaintiff, was in plaintiff's vault, together with the original chattel mortgage, in St. Paul, Minnesota, and no effort had been made to produce either at the trial.
The defendant testified that the car in question was a 1949 Mercury, six-passenger coupe. He did not know the motor number. The sheriff had taken the car from him, he supposed, for plaintiff. He was then asked what he gave for the car when it was purchased in December, 1950, and his answer was $1600. As to the value of the car at the time it was seized by the sheriff, the record shows:
"Q. (By Mr. Burden) What was the value of the car at the time the sheriff took it out of your possession?
A. Well, it would have been $1600.00 to me."
He testified that he had used the car when it was in his possession to go to and from work; that he worked from 4:30 in the afternoon until 3 o'clock in the morning; that since the car was taken away from him he had travelled by taxi, bus, borrowing cars, walking and hitch-hiking. He did not know how much money he had been out for transportation, he had been charged a dollar for some rides, others were fifty cents, but he did not know how many of each he had made. He thought he had made as many as seven, eight or ten at $1. He had traded in a car, for which he received an allowance of $400, leaving his indebtedness $1200.
The chattel mortgage recites that "All payments are due at Universal C.I.T.'s office, New York, Chicago or San Francisco." Defendant testified: "Well, I went up to make the payment on the day it was due, and it wasn't accepted because they apparently couldn't find the files." Tenders of payments were made into court on March 2, April 2 and May 2, for $95.95 each but those tenders merely show that payments were due someone and do not prove plaintiff was the owner of the note and mortgage and entitled to them. They merely show good faith on the part of defendant.
The defendant requested and the court gave one instruction. It was:
"The Court instructs the jury that under the law and the evidence your verdict must be for the defendant and that the defendant was entitled to the exclusive possession of the automobile described in the evidence at the time of the institution of this action, to-wit: on the 7th day of February, 1951. You are further instructed that under the law applicable to the case, you are required to fix the value of said automobile. If you find and believe from the evidence that plaintiff has sold or otherwise disposed of said automobile, then you will assess its value as of the date it was taken from defendant's possession, to-wit: the 7th day of February, 1951, but if you find and believe from the evidence that said automobile is still in the possession of plaintiff, then you will assess its value as of this date, and in making said assessment, you will take into consideration its value at the time of taking together with other evidence of its value. You are further instructed that if you find and believe from the evidence that defendant was deprived of the possession and use of said automobile, you may also find such an amount as you believe from the evidence was the fair and reasonable value of the use of said automobile from and after the date it was taken from defendant's possession until this date, after making all proper allowances for the cost of keeping same and deductions for such time, if any, that said automobile might have remained idle and out of use."
No other instructions were asked or given. After the verdict of the jury was returned, a motion for new trial was filed by plaintiff, alleging (a) errors in the ruling of the court in sustaining a motion for a directed verdict; (b) in the admission of incompetent evidence offered by defendant; (c) in the exclusion of competent and material evidence offered by the defendant; (d) because the court erred in giving the instruction, and (e) because the verdict of the jury was based upon speculation without substantial evidence and was so excessive as to show bias and prejudice on the part of the jury.
The motion was sustained "for the reason that the court gave an improper instruction as to the law in this case and admitted improper evidence." From the sustaining of this motion, defendant has appealed.
It was not error to sustain the motion for a directed verdict. There was no evidence that there had been default in any of the payments on the part of defendant although the theory upon which plaintiff was claiming possession seemed to be that it owned the mortgage and default had been made in payments due on the motor vehicle, and plaintiff was thereby entitled, under the mortgage provision, to take possession of the property.
Neither was there any evidence that this chattel mortgage was given to secure a promissory note or if it were so given, that the plaintiff owned the note. The security afforded by a chattel mortgage follows the note and they are inseparable, Christy v. Scott, 31 Mo.App. 331; Kingsland Ferguson Mfg. Co. v. Chrisman, 28 Mo.App. 308; Kingsland Douglas Mfg. Co. v. Board Bros., 60 Mo.App. 662, and while the note was spoken of in a discussion by counsel for both parties out of the hearing of the jury, there is not one word of testimony relative to it or who owned it at the time of the trial. "A transfer of a mortgage without an assignment of the debt secured thereby passes no right to the assignee." 14 C.J.S., Chattel Mortgages, § 316, p. 963. Elvin v. Wuchetich, 326 Ill. 285, 157 N.E. 243, 10 Am.Jur., Page 839, Sec. 186. Neither was there any evidence that the chattel mortgage had been assigned to plaintiff.
Clearly, under the evidence, the given instruction was erroneous. There was no evidence that the car was or was not in possession of plaintiff at the time of the trial, or that it had been or had not been sold or otherwise disposed of by plaintiff. Neither was there any evidence of the "cost of keeping same and deductions for such time, if any, that said automobile might have remained idle and out of use." We have recited the evidence as to the value of the automobile and there is no substantial evidence as to its reasonable market value at the institution of the suit, at the time it was taken, or at the time of trial. What it would have been worth to the defendant is not necessarily proof of its reasonable market value. An instruction must be based upon evidence. Silvey v. Herndon, Mo.App., 234 S.W.2d 355. Hayes v. Adams, Mo.App., 244 S.W.2d 123 and cases cited. For the jury to find the market value under this evidence, it must enter into the realm of speculation and guess-work. The verdict does not state at which time the value was $1600. Neither was there evidence as to "the fair and reasonable value of the use of said automobile from and after the date it was taken from defendant's possession until" the date of trial.
We think the learned trial court was justified in granting a new trial. Justice demands a full development of the facts upon the part of each litigant. Other errors complained of will not likely occur on a retrial.
The judgment of the trial court in sustaining the motion for new trial is therefore affirmed.
BLAIR and McDOWELL, JJ., concur.