James v. Newman , 73 Ga. App. 79 ( 1945 )

1. The motion of the defendant in error to dismiss the writ of error upon the ground that the plaintiff in error "has attached to the brief of evidence, which is incorporated in the bill of exceptions, seven (7) documents which are included in full, and no effort was made to brief said documentary evidence so as to include only the material portions thereof, but much that is immaterial is included, and such failure to brief such evidence is a violation of the rules of this Court," is denied under the rulings in Brawner v. Maddox, 1 Ga. App. 332 (3) (58 S.E. 278), and Holmes v. Pope, 1 Ga. App. 338, 341 (58 S.E. 281).

2. Under the testimony of the plaintiff she had such title in herself at the time of the filing of the suit, and such right of immediate possession in the automobile for which she sued, as would authorize the maintenance of her suit and a recovery by her, in the absence of proof to the contrary, and she was not estopped from asserting her title and right of possession under the rulings of this Court in Watts v. Taylor, 36 Ga. App. 537 (137 S.E. 119); Smallwood v. Warfield, 49 Ga. App. 93 (174 S.E. 185), and Livingston v. Epsten-Roberts Co., 50 Ga. App. 25 (177 S.E. 79).

3. "Any distinct act of dominion wrongfully asserted over another's property in denial of his right, or inconsistent with it, is a conversion. It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner's right, or in a manner inconsistent with it. It is in law a conversion whether it be for his own or any other's use. . . In an action for the recovery of damages on account of a conversion, proof of a demand and a refusal is only required as evidence, of the conversion; and where the conversion is shown by other evidence, such proof is not essential." Merchants Miners Transportation Co. v. Moore, 124 Ga. 482 (52 S.E. 802). "In actions to recover the possession of chattels, it shall not be necessary to prove any conversion of the property where the defendant is in possession when the action is brought." Code, § 107-101.

4. The evidence must be taken most strongly in favor of the plaintiff, in passing on the question whether or not the court rightly awarded the nonsuit. National Land Coal Co. v. Zugar, 171 Ga. 228 (2) (155 S.E. 7). "The general rule announced by the Supreme Court is that a motion for nonsuit should not be granted where there is any evidence tending to sustain the plaintiff's action, or where the jury can fairly infer from the evidence a state of facts favorable to the plaintiff." Moseley v. Patterson, 27 Ga. App. 133, 135 (107 S.E. 623). "If there be any evidence whatever to sustain the action, it must go to the jury, the court having no discretion in the matter of granting a nonsuit." East West R. Co. v. Sims, 80 Ga. 807 (2) (6 S.E. 595).

5. The court erred in granting a nonsuit.

Judgment reversed. Sutton, P. J., and Felton, J.,concur.

DECIDED OCTOBER 17, 1945. Mrs. Martha J. James, wife of Freddie E. James, brought a bail-trover action against Mrs. Nellie Newman for an automobile. The plaintiff testified with reference to the automobile, in part, as follows: "I brought it and paid for it with my own money. This check for $450, dated November 18, 1944, is the money I drew out of the bank and gave him (referring to her husband), plus $150 in cash that I had in my pocketbook, to pay for the car we are talking about. I went out there with him to where we were purchasing the car that evening, and had the money in my own pocketbook and didn't give it to him until I got out there, and we had gone out there with the intention of buying the car in my own name. We went out in my old car, and when we started out he said he was supposed to pick up some friends of his at five o'clock, and I was supposed to meet the girl who was going to sell the car at four o'clock, and when we got there where I was to meet her, she had been there and left a message that something had happened in her family and she would be back later, and for us to wait, and he said he was supposed to pick up some friends of his later in town, . . and he then asked me to give him the money and for me to come back in town and pick up his friends, and he would buy the car and finish the contract and everything, and when I got back he had bought the car in his name, but my money paid for the car, $450 which I drew out of the bank, and which I have my cancelled check for, and $150 cash that I had in my pocketbook at the time. When I got back he informed me that he had paid $750 for the car, and about two weeks later I gave him $50, and on the morning of December 22nd I gave him $100, this is the check where I drew $100 out of the bank, and which I gave him on December 22nd . . . and so whether he paid $600 or $750 for the car, he has got all of the $750 from me, and he had no money in the car." The plaintiff also testified that, "He (referring again to her husband) was here from the time we bought the car until he left on March 14th. He left me telling me he was going out to their house for supper and would be back just as early after supper as possible, . . when I went home from work I found he had gone to my house and took his clothes. When I found my automobile Mrs. Nellie Newman had it. He had took the car out there and left it with them and had caught a bus and was on his way to Miami. Yes, I have seen her in possession of the car, about which the suit is brought, before suit was brought and several times since. . . I went out to the house of Mrs. Newman to see her and try to get the car, but she was not at home."

This testimony of the plaintiff was not contradicted or rebutted by any other witness. She admitted on cross-examination that when her husband first went overseas she opened a bank account in his name and hers, which she later changed to her name only, without consulting him. She further testified that she used the allotment money for living expenses, including hospital bills, doctor's bills and funeral expenses of a baby that died, and that the money she used in purchasing the automobile was from her own earnings as a bookkeeper and stenographer; that she had always worked except during the time of advanced pregnancy and when she was in the hospital. She also admitted that she knew her husband reported the purchase of the car in his name, and that he bought the license tag in his name, but she didn't know he was going to take the bill of sale in his name when she gave him the money, and she didn't know the bill of sale had been taken in his name until they were back at the house. In answer to a question whether her husband agreed to let her use the car while he was gone, she said, "that was understood."

At the conclusion of the plaintiff's evidence, on motion of counsel for the defendant, the court granted a nonsuit in order and judgment as follows: "The plaintiff having failed to show legal title in herself a nonsuit is hereby ordered in the within stated cause and action." Error is assigned in this court on that judgment and the sole question for decision is whether the evidence was sufficient to carry the case to the jury.