Ford Motor Credit Co. v. Hitchcock

116 Ga. App. 563 (1967)

158 S.E.2d 468

FORD MOTOR CREDIT COMPANY v. HITCHCOCK.

42847.

Court of Appeals of Georgia.

Submitted June 12, 1967.

Decided October 31, 1967.

Morton P. Levine, H. A. Stephens, Jr., for appellant.

Grady E. Rozar, for appellee.

*572 PANNELL, Judge.

1. The "bad faith" which will authorize recovery of attorney's fees in an action seeking damages and attorney's fees under Code § 20-1404 is "bad faith" in the *564 transaction out of which the cause of action arose. Traders Ins. Co. v. Mann, 118 Ga. 381 (6, 7), 384 (45 SE 426); McKenzie v. Mitchell, 123 Ga. 72 (51 SE 34); Lovell v. Frankum, 145 Ga. 106 (88 SE 569).

Where, as here, a petition seeking damages for the alleged wrongful repossession of an automobile alleges that the defendant finance company wilfully, intentionally, and maliciously and without probable cause repossessed the plaintiff's automobile, that there were no monthly payments in arrears and that defendant took the automobile without reason or cause and refused to return it, is a sufficient allegation of facts to support an allegation of bad faith and stubborn litigiousness under Code § 20-1404. The trial court therefore did not err in overruling the demurrer to such allegations in the petition attacking them on the grounds that they were a conclusion of the pleader.

The attorney's fees were eliminated by charge to the jury, and even if the overruling of the demurrer be error, it was harmless.

2. While the allegations of the petition that "since the taking [the defendant] has refused to return it [the automobile] to the plaintiff," the defendant being a corporation, may have been subject to the demurrer that it did not disclose the date or the name of the person who on behalf of the defendant refused to return the automobile to the plaintiff, it appears that the overruling of this demurrer was harmless to the defendant since the defendant had as witnesses at the trial all of its employees with whom the plaintiff or her agents had any conversations or dealings with reference to the matters at issue, and the evidence discloses the defendant never, at any time, offered to return the automobile except upon payment of sums which it was not entitled then to receive.

3. The court gave the following charge: "Now, the plaintiff has sued for the market value of this automobile. This action being in tort, and since the repossession, if wrongful, caused the plaintiff to sustain a total loss of her property right in the automobile, the measure of the actual damages was the market value of her property at the time of the trespass, to which interest could be added. The market value of the plaintiff's property right would be determined by taking the market value of the automobile itself and subtracting therefrom the *565 balance due on the purchase price of the automobile." After some intervening charges he gave the following charge which was objected to: "Notwithstanding the holder of the legal title to personality may maintain an action in tort for damage to the property, one who is not the holder of the legal title but who is in legal possession of the property having a special interest therein and holding an equitable title thereto as purchaser with part of the purchase money unpaid, may maintain an action in tort to recover for the entire damage to the property, the amount recovered, however, being subject to his own use and that of the holder of the legal title as their respective interests may appear." The ground of objection was that the latter charge was "actually in conflict with" the prior charge, the charge objected to indicating "that plaintiff may recover the entire amount."

The charge objected to was a charge of an abstract principle of law which applies only to cases where such an action is brought by the equitable owner against a third party not the legal title holder. Here the action was against the legal title holder as covered in the first charge. There is no conflict in the charges. That the latter charge might have been confusing to the jury is not raised by the objection made.

4. "An act of a person, although without legal right or authority, upon the person or property of another, which causes damage, where done in good faith and without wilfulness or malice, or such gross neglect as to indicate a wanton disregard for the rights of another, will not authorize the infliction of punitive damages." Lawrence v. Atlanta Gas Light Co., 49 Ga. App. 444 (4) (176 SE 75). "To authorize the imposition of punitive damages, there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Southern R. Co. v. O'Bryan, 119 Ga. 148 (45 SE 1000)." Central of Ga. R. Co. v. Sowell, 3 Ga. App. 142 (59 SE 323).

Neither the agent of defendant who collected a payment on the contract at the same time he secured the extension agreement, nor the agent who approved these actions and initialed the formal reports thereof, testified or claimed that they forgot about such facts. It follows therefore that the jury was authorized to find that this knowledge, coupled with knowledge that three additional payments had been made, *566 was knowledge that the account was not in arrears at the time the repossession was made on the instructions of one agent and at the time plaintiff's husband exhibited evidence of payments to the other agent in an attempt to secure a return of the automobile. The jury was authorized to find additionally, therefore, that the repossession was made in bad faith and was wilfully and wantonly made with full knowledge of lack of all probable cause for so doing, and that rather than depend upon their own knowledge they preferred to go by what the computer "told" them. It might be said further that the evidence shows that with the payment, made at the time of the extension agreement, credited to the contract, the contract would not have been in arrears until April 29, 1966, even without the extension, and therefore that the defense, based upon the failure to send in the extension agreement as the cause of the error, is not supported by the evidence. The verdict was authorized by the evidence both for actual and exemplary damages under Code § 105-2002, which provides that "In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff."

5. The remaining enumerations of error relating to the charges of the court, when the evidence and the charge as a whole are considered, are without merit.

Judgment affirmed. Bell, P. J., concurs. Whitman, J., concurs specially.