Summary
holding that where record lacked descriptive evidence of numerous items of personal property from which the jury could draw an intelligent conclusion of value, the jury's subsequent aw ard of damages was unauthorized
Summary of this case from Barking Hound Vill., Llc. v. MonyakOpinion
33866.
DECIDED FEBRUARY 19, 1952.
Trover; from Cobb Superior Court — Judge Brooke. September 29, 1951.
Stonewall H. Dyer, Victor K. Meador, H. C. Schroeder, for plaintiff.
L. C. Hames Jr., for defendant.
In a trover action the plaintiff may recover the highest proved value of the personalty between the date of conversion and the date of trial. In determining value, the jury is not confined to the opinions of witnesses, where from the facts proved as to the nature of the property and other facts properly within its knowledge, it may legitimately arrive at a different valuation; but, where the property is described in such generic terms that no inference of its value may be independently drawn, a verdict for a sum entirely unsupported by the evidence is unauthorized.
DECIDED FEBRUARY 19, 1952.
E. D. Sammons brought a bail-trover proceeding in Cobb Superior Court against P. C. Copeland for one 1949 Ford pick-up truck and nineteen small articles, including an electric saw, a wheelbarrow, and paint brushes, alleging that the articles were included in a retention-title note made out to the plaintiff and had a value of $1586.10. The defendant answered that the plaintiff, prior to the execution of the note and bill of sale in question, entered into a conspiracy with his nephew, M. B. Cameron, who was a business partner of the defendant, under the firm name of Cameron Construction Company, to defraud him of his interest in the partnership assets, and that therefore the note and bill of sale are void. The intervention of equity is prayed to cancel the same. The plaintiff amended by showing that his claim was based on two retention-title notes, one in the sum of $1000, made out by Cameron Construction Company to the plaintiff on April 29, 1950, and the other a retention-title note and contract on the Ford truck, on which there is a balance due of $586.10, dated May 18, 1949, which had been transferred by the payee, Wade Motor Company, to First National Bank and by it to the plaintiff. These instruments were introduced on the trial. The evidence of Sammons was: that Cameron and Copeland had issued some checks on the firm which they were unable to cover; that they were engaged at that time in fulfilling a contract to build a house, and Cameron asked the plaintiff in the defendant's presence whether he could let them have enough money to cover the checks until they finished the house; that the plaintiff told them his money was in a savings bank in Macon, but agreed to lend the partnership $1000; that the defendant then instructed Cameron to drive the plaintiff to Macon for the purpose of getting the money, which was done. The money was turned over to Cameron for the firm and used in part to cover outstanding checks, on the agreement that it should be refunded in two or three weeks' time when the house was finished; that at that time they were unable to repay the money; that the plaintiff wished to protect his loan, and on April 29, 1950, took a note and bill of sale on the Ford and other equipment listed in the sum of $1000, payable in fifteen days, signed, "M. B. Cameron P. C. Copeland tr. as Cameron Const. Co."; that thereafter a prior retention-title note on the truck became due at the First National Bank in the sum of $586.10, and this was paid by the plaintiff to protect his interest, he receiving an assignment of the instruments to himself. M. B. Cameron testified for the plaintiff that he owned 51 percent of the partnership assets and the defendant owned 49 percent. He identified the bank records of the Cameron Construction Company and indicated a deposit of $1000 to the firm's credit on April 12, 1950, as being the $1000 received from the plaintiff; and in general confirmed the plaintiff's testimony. The testimony of the company auditor was to the effect that at the time the loan was made, the firm had outstanding liabilities of approximately double that amount, and that the money was used in the payment of partnership debts. The partnership was dissolved in May, 1950, and the property divided between the partners, that levied upon being in the possession of the defendant.
The defendant's evidence was to the effect that he owned 50 percent of the partnership assets; that he was not present and had no conversation with either the plaintiff or Cameron concerning the loan; that it was not a necessary loan and so far as he knows was not made; that Cameron, his wife, and the bookkeeper kept books and he was not able to find out anything about them although he tried to do so. The defendant admitted having in his possession the Ford truck, electric cord, extension ladder, wheelbarrow, and one screw jack. The value of these items was estimated by the witness Cameron to be a minimum of $835, this being the only testimony as to the value of the articles. At the conclusion of the evidence the court directed the jury to return a verdict for $586.10 in any event, this being the amount the plaintiff paid the bank to prevent the foreclosure of its prior lien against the truck. The plaintiff elected a money verdict. The court further charged that the jury should then consider whether or not a loan in the sum of $1000 was actually made or whether it represented a mere scheme on the part of the plaintiff and Cameron to defraud the defendant out of his share of the partnership assets, as contended by him.
The jury returned a verdict for $686.10 in favor of the plaintiff, who, being dissatisfied with the amount, filed a motion for a new trial on the general grounds and later amended by adding four special grounds. The overruling of this motion is assigned as error.
1. The first special ground contends that the verdict for $686.10 is not supported by the evidence; that the court having charged the jury to find, in any event, in favor of the plaintiff $586.10, being the amount which the plaintiff paid the bank to prevent the foreclosure of the lien held by it against the truck, and which the plaintiff was forced to pay in order to protect his subordinate lien, and the jury having returned a verdict for $686.10, which was $100 more than the amount the court directed the jury to find in favor of the plaintiff in any event — the jury necessarily found in favor of the $1000 retention-of-title contract and note. It is further contended that the jury, having thus returned a verdict for more than the sum of $586.10, necessarily found against the defendant's equitable plea, for which reason the verdict for $686.10 is not supported by any evidence, because the highest proved value of the items of personal property, levied upon and covered by the two instruments executed by the partnership to the plaintiff, which were in the undisputed possession of the defendant, was shown by the evidence to be a minimum of $835, and that the plaintiff is entitled to recover the highest proved value between the date of conversion and the date of trial, under Code § 107-103.
Obviously the jury found in favor of the validity of both the instruments upon which the action is based. Accordingly, the sole question for determination is whether or not the verdict as to the value of the property levied upon in the possession of the defendant is supported by the evidence. The term "highest proved value" means the highest value which the jury, from a consideration of all the proof, may fix. Woodham v. Cash, 15 Ga. App. 674 ( 84 S.E. 142); Elder v. Woodruff Hardware c. Co., 9 Ga. App. 484 ( 71 S.E. 806). As to proof of value generally, "jurors are not absolutely bound to accept as correct the opinions or estimates of witnesses as to the value of property, though uncontradicted by other testimony, but have the right to consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge, throwing light upon the question, and they may, by their verdict, fix either a lower or a higher value upon the property than that stated in the opinions or estimates of the witnesses." McLendon v. City of LaGrange, 47 Ga. App. 690 (3) ( 171 S.E. 307). This rule was applied in the trover action of Sapp v. Howe, 79 Ga. App. 1 ( 52 S.E.2d 571), and it was held that, in fixing "highest proved value," the jury "may consider the nature of the property involved, together with any other fact or circumstance properly within their knowledge throwing light on the question." In that case there was evidence as to the general condition of the truck, its use and state of repair, cost price and mileage. No such evidence appears in the record in this case, the truck being merely described as a "1949 Ford pickup truck" without any facts which could give the jury an idea as to its state of repair or previous usage. The other articles, including the electric saw, wheelbarrow and so on, were not described in any way. The witness Cameron estimated the value of the truck to be "between $750 and $800"; he gave similar fluctuating estimates on the other property. According to his estimate, the property admittedly in the defendant's possession was worth between $835 and $927, and the property claimed by the plaintiff to be in the defendant's possession had a total value of between $1032 and $1176. Had there been in the record any descriptive evidence of the kind and condition of the property from which the jury might have come to any intelligent conclusion as to its worth, the value set by it would be determinative, although higher or lower than any of the estimates given by the witness. But where there is no proof of facts from which an inference of value may be ligitimately drawn, the jury should properly base its verdict on the evidence before it, which in this case includes only the opinion of a witness who had previously owned the property. See Elder v. Woodruff Hardware c. Co., 16 Ga. App. 255, 257 ( 85 S.E. 268). There being here no evidence that the value of the property was $686.10, and no evidence of facts regarding the nature of the property from which the jury might, in the light of other facts or circumstances properly within their knowledge, arrive at this figure, the verdict for this amount was unauthorized.
2. The remaining assignments of error are not passed upon, for the reason that the second is but an amplification of the general grounds; the third ground is not argued and is therefore treated as abandoned; and the fourth contains no assignment of error.
The trial court erred in overruling the motion for a new trial for the reason stated in the first division of this opinion.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.