Opinion
38289.
DECIDED JUNE 6, 1960.
Trover; nonsuit. Paulding Superior Court. Before Judge Foster. February 9, 1960.
Marson G. Dunaway, Jr., for plaintiff in error.
John T. Perren, contra.
1. Where in a trover suit a petition is amended so as to allege the right of possession to certain personal property before an entry of an order of nonsuit, and the evidence authorizes a finding that the plaintiff has the right to such possession, it is error for the trial court to grant a nonsuit.
2. There is no provision in the law for a partial nonsuit.
DECIDED JUNE 6, 1960.
Jed C. Alexander filed a trover action in the Superior Court of Paulding County against Billy Joe Jones, doing business as Jones Motor Company. The original petition alleged that the plaintiff owned a 1957 Ford automobile and delivered same on July 10, 1958, to the defendant for the purpose of having the vehicle repaired by the defendant. The next day the plaintiff, desiring the use of his automobile, demanded that it be returned to him. It is further alleged that the defendant failed and refused to deliver possession of the automobile to the plaintiff, because the defendant's father left instructions not to let the petitioner have the vehicle; at the time demand was made on the defendant, no repairs had been made and the defendant had no legal reason to refuse to deliver possession to the plaintiff; that such refusal constituted a legal conversion for which this plaintiff brought suit. In addition the petition alleged that certain personal property was inside the automobile belonging to the plaintiff which was also converted by the defendant's refusal to deliver the vehicle to the plaintiff's possession.
The defendant filed an answer in the nature of a general denial.
The matter came on for trial on February 9, 1960. The plaintiff, being the sole witness, testified that he had purchased the automobile from Jones Motor Company to be used in his employment as General Manager of the B. M. Jones Wood Timber Corporation. The plaintiff introduced a conditional-sale contract showing a retention of title in the B. M. Jones Truck Tractor Co., and the plaintiff made his payments to the C. S. National Bank. The plaintiff testified that he was not in default on any payment on the contract at the time he delivered the automobile to Jones Motor Company. The plaintiff further testified that he had an agreement with B. M. Jones Wood Timber Corporation whereby the plaintiff would purchase the automobile and the corporation would pay the up-keep expenses. On July 11, the plaintiff was relieved of his position with the corporation and went to the defendant company to see how they were getting along with his car. When he arrived he found that there had been no work done on it. The defendant refused to deliver the automobile to the plaintiff because the defendant's father had so instructed. The plaintiff further testified that when he spoke to the defendant's father, the father stated: "Well, we are just going to keep it and you had better not try to get it." The plaintiff further testified that he had a recapped tire at the value of $20, a walking stick which had originally belonged to his father at a value of $5, a pair of shoes at the value of $8, and a jacket at a value of $8, in the automobile. The plaintiff further testified that the value of the automobile was $2,000.
On redirect examination the plaintiff testified that he dealt with Billy Joe Jones in buying the automobile and did not know why the conditional-sale contract was made in the name of B. M. Jones Truck Tractor Co., except that they were doing the financing in some way; that the C. S. National Bank did the financing and paid to the B. M. Jones Truck Tractor Co. $1,341.17, for which the latter corporation gave the plaintiff a receipt.
At the conclusion of the plaintiff's evidence, the defendant made a motion for a nonsuit which the court announced orally would be granted provided the defendant would return the items sued for or their value, as elected by the plaintiff in the action, except the automobile, which the defendant agreed to do. The plaintiff thereupon tendered an amendment to the petition which alleged, among other things, that the plaintiff was entitled to possession of the vehicle sued for when it was placed in the hands of the defendant and on the date of the demand set out in the petition. The amendment was allowed and, thereafter, the defendant submitted to the court a written order granting the motion for nonsuit which the court allowed.
To the court's order granting the nonsuit, the plaintiff excepts and assigns same as error for review before this court.
1. "Regardless of whether a petition sets out a cause of action, if the plaintiff proves every fact charged, without at the same time disproving his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict, it is not proper to award a nonsuit." Clark v. Bandy, 196 Ga. 546 ( 27 S.E.2d 17).
Where there is evidence admitted without objection to establish the plaintiff's cause which is not supported by proper allegations in the petition and there is no motion to withdraw it from the jury, the plaintiff is entitled to the benefit of such testimony on a motion for a nonsuit. Field v. Martin, 49 Ga. 268; Citizens Bank v. Valdosta Mill c. Co., 34 Ga. App. 713 ( 131 S.E. 126). "Where one in possession of personal property under a conditional sale is wrongfully deprived of its possession, he has a right to institute an action of trover against the wrong-doer to recover possession of the property, on the ground either of title, or of right of possession." Painter v. McGaha, 6 Ga. App. 54 ( 64 S.E. 129). Also see White v. Dodson, 41 Ga. App. 436 ( 153 S.E. 233). In a similar case, Fenn v. Seaborad Air-Line Ry., 120 Ga. 664 ( 48 S.E. 141), the court stated: "A motion for a nonsuit was made upon the ground (among others) of a variance. An order granting the same was passed, but before it was entered an amendment was offered and allowed, without objection, which adjusted the petition to the proof. After the allowance of the amendment no motion of any character was made by either party, but subsequently the order granting the nonsuit was filed. Held, that it will be presumed that the subsequent filing of the order was under the direction of the judge, nothing to the contrary appearing; and that, when so considered, the order of nonsuit was a judgment that the plaintiff had failed to prove his case as laid in the petition as amended."
Applying the above principles of law to the facts of the instant case, the trial court erred in granting the nonsuit. The evidence disclosed an unconditional right of the plaintiff to the possession of the automobile. While the original petition alleged the title in the plaintiff as the basis of the trover action and while the evidence disclosed that such title was in a third person, an amendment to the petition was allowed prior to entering of the trial court's order of nonsuit which alleged the plaintiff's right of possession to the automobile. The evidence was sufficient to prove the allegations of the petition as amended so as to authorize a recovery upon the theory of a right of possession.
2. As stated in Southern States Exploring c. Syndicate v. McManus, 113 Ga. 982 (4) ( 39 S.E. 480), there is no such thing as a "partial nonsuit." The trial court in the instant case should not have granted a nonsuit for recovery as to one item provided the defendant return or pay the value (as elected by the plaintiff) of the other items in the suit. If a recovery in any amount be authorized, no matter how small, a nonsuit should not be awarded. Duke v. Cason, 25 Ga. App. 344 ( 103 S.E. 176). The trial court's order recognized that the evidence showed a right of the plaintiff to the items of personal property in the automobile. On such a finding, the trial court should have denied the motion for a nonsuit. Duke v. Cason, 25 Ga. App. 344, supra; Harris v. Underwood, 206 Ga. 243 ( 56 S.E.2d 287).
Judgment reversed. Gardner, P. J., Townsend and Carlisle, JJ., concur.