Smith v. State Farm Mutual Automobile Insurance

Court of Appeals of Georgia

Smith v. State Farm Mutual Automobile Insurance

79 S.E.2d 7, 89 Ga. App. 292, 1953 Ga. App. LEXIS 951

CourtCourt of Appeals of Georgia

DecidedDecember 2, 1953

Docket34780

StatusPublished

Cited by2 cases

This text of 79 S.E.2d 7 (Smith v. State Farm Mutual Automobile Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. State Farm Mutual Automobile Insurance, 79 S.E.2d 7, 89 Ga. App. 292, 1953 Ga. App. LEXIS 951 (Ga. Ct. App. 1953).

Pincite

Opinion

Felton, J.

The plaintiff sought to introduce a bill of sale on the automobile in question executed to it by J. 0. Wallace. However, the court excluded this document from evidence because of insufficient description of the automobile contained therein. The only evidence dealing with the transaction between the plaintiff insurance company and Wallace was his testimony that he sold the automobile to the insurance company for $1,800.

The principal issue in a trover action is one of title, possession at the time of conversion, or right of immediate possession. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25 (1) (177 S. E. 79); Page v. Moxley, 28 Ga. App. 620 (112 S. E. 731). In the instant case the plaintiff did not show title to the property sued for by virtue of a valid written bill of sale. The owner, Wallace, did not have possession of or dominion over the property, and [293]*293therefore could not transfer title thereto to the plaintiff by delivery, actual or constructive. Livingston v. Anderson & Son, 2 Ga. App. 274 (58 S. E. 505); Continental Trust Co. v. Bank of Harrison, 162 Ga. 758 (134 S. E. 775); Code § 96-107. Neither did the plaintiff show possession of the property at the time of the alleged conversion. Any right of immediate possession of the property which the plaintiff might have had under the facts of this case would have depended on its showing title thereto; and having failed to show title in itself, the plaintiff failed to show a right of immediate possession. Assuming that the plaintiff may have had equitable title to the property sued for, equitable title less than perfect equitable title cannot be the basis for a trover action. Bush v. Smith, 77 Ga. App. 329 (48 S. E. 2d 582); Mitchell v. Georgia & Alabama Ry., 111 Ga. 760 (36 S. E. 971); Delaney v. Sheehan, 138 Ga. 510 (75 S. E. 632); Gaskins v. Gray Lumber Co., 6 Ga. App. 167 (64 S. E. 714). The plaintiff failed to establish its right to recover either a property or a money verdict for the property. Harrell v. Lister, 29 Ga. App. 150 (114 S. E. 77).

Upon direction the jury returned a verdict for “$1,800 as principal and the sum of $267.75 as interest.” This verdict is too uncertain to be upheld, because it is not apparent whether the verdict represents damages with interest or highest proved value of the property plus interest. Drury v. Holmes, 145 Ga. 558 (89 S. E. 487); Beavers v. Magid, 56 Ga. App. 272 (192 S. E. 497).

The court erred in directing a verdict for the plaintiff and in denying the motion for new trial.

Judgments reversed.

Sutton, C. J., and Quillian, J., concur.

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Felton, J.

The plaintiff sought to introduce a bill of sale on the automobile in question executed to it by J. 0. Wallace. However, the court excluded this document from evidence because of insufficient description of the automobile contained therein. The only evidence dealing with the transaction between the plaintiff insurance company and Wallace was his testimony that he sold the automobile to the insurance company for $1,800.

The principal issue in a trover action is one of title, possession at the time of conversion, or right of immediate possession. Livingston v. Epsten-Roberts Co., 50 Ga. App. 25 (1) (177 S. E. 79); Page v. Moxley, 28 Ga. App. 620 (112 S. E. 731). In the instant case the plaintiff did not show title to the property sued for by virtue of a valid written bill of sale. The owner, Wallace, did not have possession of or dominion over the property, and [293]*293therefore could not transfer title thereto to the plaintiff by delivery, actual or constructive. Livingston v. Anderson & Son, 2 Ga. App. 274 (58 S. E. 505); Continental Trust Co. v. Bank of Harrison, 162 Ga. 758 (134 S. E. 775); Code § 96-107. Neither did the plaintiff show possession of the property at the time of the alleged conversion. Any right of immediate possession of the property which the plaintiff might have had under the facts of this case would have depended on its showing title thereto; and having failed to show title in itself, the plaintiff failed to show a right of immediate possession. Assuming that the plaintiff may have had equitable title to the property sued for, equitable title less than perfect equitable title cannot be the basis for a trover action. Bush v. Smith, 77 Ga. App. 329 (48 S. E. 2d 582); Mitchell v. Georgia & Alabama Ry., 111 Ga. 760 (36 S. E. 971); Delaney v. Sheehan, 138 Ga. 510 (75 S. E. 632); Gaskins v. Gray Lumber Co., 6 Ga. App. 167 (64 S. E. 714). The plaintiff failed to establish its right to recover either a property or a money verdict for the property. Harrell v. Lister, 29 Ga. App. 150 (114 S. E. 77).

Upon direction the jury returned a verdict for “$1,800 as principal and the sum of $267.75 as interest.” This verdict is too uncertain to be upheld, because it is not apparent whether the verdict represents damages with interest or highest proved value of the property plus interest. Drury v. Holmes, 145 Ga. 558 (89 S. E. 487); Beavers v. Magid, 56 Ga. App. 272 (192 S. E. 497).

The court erred in directing a verdict for the plaintiff and in denying the motion for new trial.

Judgments reversed.

Sutton, C. J., and Quillian, J., concur.

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79 S.E.2d 7, 89 Ga. App. 292, 1953 Ga. App. LEXIS 951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-farm-mutual-automobile-insurance-gactapp-1953.

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