Hollingsworth v. Case

100 So. 2d 772, 267 Ala. 165, 1957 Ala. LEXIS 509

Opinions

MERRILL, Justice.

The appellee, Case, brought detinue against appellant, Hollingsworth, to recover an automobile. The facts are more fully set out in the dissenting opinion of the Chief Justice. They may be outlined as follows: Case- sold the automobile through an auction company to Bishop. The auction company had. a policy with Fidelity Insurance Company of Tennessee whereby payment of Bishop’s check was guaranteed. Bishop sold the automobile to Wyatt who sold it to appellant.

In the meantime, Bishop’s check was not good and Case was reimbursed under the insurance policy. At that time, he signed the agreement quoted in Chief Justice LIVINGSTON’S opinion. He then brought this detinue suit against Hollingsworth. At the conclusion of the evidence, the court gave the affirmative charge with hypothesis for the plaintiff Case.

It is elementary that a plaintiff in detinue must have a general or special property in the article sued for, or have legal title, and the right of immediate possession at the time of the suit. La Rue v. Loveman, Joseph & Loeb, 220 Ala. 2, 127 So. 241; Hollimon v. McGregor, 225 Ala. 517, 143 So. 902; 7A Ala.Dig., Detinue, <®~3 5.

During the cross-examination of plaintiff Case, the following transpired:

“Q. All right now, after it (the amount of the check) was paid to you by the insurance company, have you had any further interest or title to this automobile? A. No sir.

“Q. And you don’t have any interest or title in it now, do you ? A. No sir.

“Q. And you didn’t have any interest or title in it at the time you brought this suit, on the 13th day of March, 1956 did you? A. No sir.

“Q. And you haven’t had any interest in it since that date, have you? A. No sir.

“Q. And you haven’t seen it since the day you sold it? A. No sir.

“Q. Now you accepted this check in full payment of the automobile, did you not? A. Yes sir.”

Nowhere in the record do we find a denial or a retraction of these categorical statements. The mere fact that Case testified on redirect examination that the suit was brought with his permission and that he was cooperating in it was not a sufficient modification of his quoted testimony to support the requested affirmative charge in his favor.

A conflicting tendency of the evidence making a question for the jury may be presented by the direct and cross-examination of one witness. Parkinson v. Hudson, 265 Ala. 4, 88 So.2d 793, and cases therein cited.

In view of the plaintiff’s testimony quoted, supra, we cannot say that he was entitled to recover as a matter of law. It follows that the trial court erred in giving the affirmative charge with hypothesis requested by the plaintiff. The judgment of the circuit court is reversed and the cause is remanded.

Reversed and remanded.

LAWSON, GOODWYN and COLEMAN, JJ., concur with the foregoing. LIVINGSTON, C. J., dissents, in which SIMPSON, J., concurs specially.