Opinion
No. 38211.
February 4, 1952.
1. Sales — conditional sales contract — mechanic's liens — motor vehicles.
A motor truck was purchased on a conditional sales contract with title retained to secure the balance of the purchase money. The truck was first used in hauling pulpwood, but it was decided by the purchaser to use it in hauling logs in a hilly terrain where to do so it was necessary to install a headache rack behind the cab, and a trailer carrier and log standards and a pull block on the truck. A mechanic installed the equipment for which the operator and purchaser of the truck failed to pay him, and he brought an action against the purchaser and the conditional sales seller to enforce a mechanic's lien on the truck: Held that the jury was justified in finding as it did that the repairs were reasonably necessary to preserve the property and permit its ordinary operation, and the judgment awarding the lien was affirmed.
Headnote as approved by Kyle, J.
APPEAL from the circuit court of Winston County; HENRY L. RODGERS, Judge.
Livingston Fair, for appellant.
I. The court erred in overruling defendant's (appellant's) motion to exclude the evidence presented by the plaintiff (appellee) and instruct the jury to find for the defendant.
It is admitted that the equipment placed on Mr. Vanlandingham's truck was not equipment which was ordinarily on the truck as manufactured; that this equipment was built at their place of business and was a stock item in trade with them, and that they attached this equipment to and built it on existing trucks, which is something new that is being added to the trucks. The testimony shows that this is additional equipment that they made for certain type trucks. The testimony also shows that the appellee did not find any existing damage to the truck that he repaired, and did not do anything to the truck to help it operate, but that it was in good mechanical and operating condition when received by appellee.
In the case of Funchess v. Pennington, 39 So.2d 1, the Court stated: "The problem reduces itself to the inquiry whether appellant, by the stipulation and exhibit thereto, there being no other testimony, has shown that he had a lien upon the truck, and if so, the amount secured thereby, and whether the labor and materials furnished by him, constituting the bases of his lien, were reasonably necessary to preserve the truck, enable it to operate in the ordinary way and prevent deterioration. The cases impose that burden upon one claiming such a lien as against one holding title as security for the unpaid purchase price. Broom Son v. S.S. Dale Sons, 109 Miss. 52, 67 So. 659, L.R.A. 1915D 1146; Moorehead Motor Co. v. H.D. Walker Auto Co., 113 Miss. 63, 97 So. 486; Wingate v. Mississippi Securities Co., 152 Miss. 852, 120 So. 175; Devan Motor Co. v. Bailey, 177 Miss. 441, 171 So. 342; General Motors Acceptance Corp. v. Shoemake, 192 Miss. 446, 6 So.2d 309. See also Eastex Finance Co. v. Bryant, 42 So.2d 418; Hardy v. Watkins, 150 Miss. 861, 117 So. 255, 256.
II. The court erred in refusing to grant instruction instructing the jury to find for the defendant.
Under the evidence it has been shown by the defendant that the truck in question was purchased by Mr. Vanlandingham for a pulpwood truck; that the equipment placed on this truck by the plaintiffs below was additional equipment and new articles furnished by them, and in no way whatsoever constituted necessary repairs, or even simple repairs to this truck. That the work done by the plaintiffs on this truck was only necessary for one purpose, that purpose being to enable Mr. Vanlandingham to obtain one special and specific job in very hilly country over in Alabama. It was also true and uncontradicted from the evidence that the custom prevailing in Winston County, Mississippi, and in this area generally does not include the use of the equipment and articles claimed as repairs by the plaintiff in this case.
III. The court erred in permitting certain opinion evidence to be introduced.
All of the testimony referred to was incompetent, in that all of the questioned witnesses attempted to give their opinion as to certain repairing to the truck being necessary. At no time in their testimony did they show how said repairs were necessary. They did not show that the truck was not in good operating condition or that the work done by them was necessary to preserve the truck, to prevent its deterioration or to prevent its decay. J.H. Hathorn, for appellees.
We respectfully submit that the plaintiff in the court below, appellee here, has met the burden of proof required by the statute for the establishment and enforcement of a materialman and mechanic's lien against the truck here involved; that the circuit court of Winston County, Mississippi, correctly and properly submitted the question to the jury for its decision on the issue of facts as to whether or not said repairs were made and whether or not they were reasonably necessary to preserve the truck, permit its operation, and prevent its deterioration. The jury found for the plaintiff, appellee here, on this question, and we respectfully submit that on such an issue of fact the decision of the jury should not be disturbed in this case. These liens are recognized at common law, and are favored by our statutes. We would further call the Court's attention to the reason and necessity for the rule of proving that the repairs were reasonably necessary to preserve the truck, permit its operation, and prevent its deterioration, is that under these circumstances of necessity authority of the holder of the retained title contract to make the repairs would be implied. This very question was passed on in the case of Moorehead Motor Co. v. Walker, 133 Miss. 63, 97 So. 486.
Kemp Machinery Service, a partnership composed of Walter Kemp and H.T. Kinard, filed suit in the justice of the peace court of Winston County against S.B. Vanlandingham and the Doss Motor Company, a corporation, for the recovery of a judgment against Vanlandingham and for the enforcement of a lien for materials and repairs on a one and one-half ton 1947 G.M.C. truck owned by Vanlandingham subject to a retained title lien in favor of the Doss Motor Company. The plaintiff attached to the declaration filed in the justice of the peace court an itemized statement of the materials furnished and repairs made and the labor performed on the truck by the plaintiff, amounting to $132.70.
Judgment was rendered in the justice of the peace court in favor of the plaintiff and against Vanlandingham for the amount sued for and establishing a lien against the truck for the amount of the judgment. The Doss Motor Company thereupon appealed the case to the circuit court. The case was tried de novo before a jury in the circuit court. It was expressly stipulated during the trial that if the court should hold that the lien of the plaintiff for materials and labor represented a valid lien superior to the retained title lien of the Doss Motor Company, judgment should be entered directly against the Doss Motor Company for the amount found to be due and for which the plaintiff was entitled to enforce its lien against the truck. A verdict was returned in favor of the plaintiff against the Doss Motor Company for the sum of $104.70, being the amount due for the repairs made on the truck. It appeared from the testimony that $28 of the materials and labor furnished by the plaintiff was for labor and materials furnished in repairing a trailer in which the Doss Motor Company had no interest, and for that reason the finding of the jury against the Doss Motor Company was limited to $104.70. After the jury had returned its verdict, the court entered judgment in favor of the plaintiff against Vanlandingham and the Doss Motor Company for the sum of $104.70, and against Vanlandingham for the additional sum of $28. From the judgment thus entered by the circuit court the Doss Motor Company prosecutes this appeal.
The proof showed that Vanlandingham purchased the truck from the Doss Motor Company during the month of December 1947; and that the unpaid balance of the purchase price was to be paid by Vanlandingham to the Doss Motor Company in monthly installments; all of which was evidenced by a purchase money note which recited that title to the truck should remain in the Doss Motor Company until the balance of the purchase price had been paid. Vanlandingham used the truck for a short time in hauling pulpwood. Sometime during the month of February Vanlandingham carried the truck to the Kemp Machinery Service and had certain repairs made on the truck for the purpose of using it in hauling logs for one Monroe Lee in Alabama.
The logging operations were to be carried on in a very hilly country where there were no roads, and to get the logs out of the woods it was sometimes necessary to mount the trailer used in hauling the logs on the truck and to back the truck into the woods where the logs were to be loaded. The repairs which Vanlandingham had the Kemp Machinery Service make consisted of installing a headache rack behind the cab of the truck and installing a trailer carrier, log standards and a pull hook on the truck. The pull hook was attached to the front end of the truck so that the truck might be hitched to a tractor if it became necessary to make use of a tractor in pulling the load out of a ravine or up a steep incline. The headache rack was built up behind and over the cab "for the protection of the cab and for the trailer pole to ride in when it was hauling the trailer." Vanlandingham also had some welding done on the bolsters and the upright pieces to hold the logs on the truck. As to the need for repairs Vanlandingham said, "Well, we were in a hilly country, and we had to have this done to haul this trailer and back in these places and get the logs. We would have to back down a hill probably a quarter and you couldn't back in there with your trailer down, you had to ride it in to get into these places."
The appellant's attorneys in their assignment of errors and in their brief contend that the court erred in refusing to grant the peremptory instruction requested by the Doss Motor Company on the ground that the repairs made by the Kemp Machinery Service on the truck were not reasonably necessary to preserve the property, or to permit its ordinary operation or to prevent deterioration. Appellant's attorneys contend that the work done on the truck and the material furnished were not needed for ordinary hauling, that the headache rack, the trailer carrier and log standards were not standard equipment usually required for the operation of a truck, but that said articles were in the nature of additional equipment; and that the rule of caveat emptor should be applied in this case.
Several witnesses testified for the plaintiff on the question as to whether or not the above mentioned repairs were reasonably necessary for the proper preservation and operation of the truck. Each of these witnesses, who were qualified by experience to testify on the point, stated that in his opinion the repairs were necessary, if the truck was used for hauling logs. The issue as to whether the repairs were reasonably necessary to preserve the truck and keep it in running order and prevent its deterioration was submitted to the jury under proper instructions from the court, and the jury by its verdict found that the repairs were necessary for the purposes stated. We think that the testimony offered by the plaintiff to show that the repairs were necessary for the above stated purposes was competent, and that the jury was justified in its finding that the repairs were reasonably necessary to preserve the property and permit its ordinary operation. This case, therefore, comes within the rule laid down in the case of J.A. Broom Son v. S.S. Dale Sons, 109 Miss. 52, 67 So. 659, L.R.A. 1915D, 1146, and the judgment of the lower court is therefore affirmed.
Affirmed.
McGehee, C.J., and Lee, Arrington and Ethridge, JJ., concur.