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  "name": "Union Motor Company v. Tait",
  "name_abbreviation": "Union Motor Co. v. Tait",
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    "judges": [
      "Mr. Justice George Rose Smith and Mr. Justice Ward dissent."
    ],
    "parties": [
      "Union Motor Company v. Tait."
    ],
    "opinions": [
      {
        "text": "Griffin Smith, Chief Justice.\nTwo. judgments, were rendered against Union Motor Company in favor of Mrs. J. O. Tait: one for $1,300, the other for $100. In appealing the Company urges errors' in nine instances, each prejudicial.\nMrs. Tait, whose automobile and ring were the sub: ject-matter of litigation, had lived at Sanford, Florida, but was employed at Orlando as a news announcer for a radio station. Her husband was inducted into the armed forces and in May, 1953, was stationed at Oceana, \u25a0 Yirr. ginia. In order to he near him while he awaited overseas orders Mrs. Tait went to the Virginia city, taking with her a used Ford automobile she had purchased of Filley Motor Company at Orlando the preceding December. An old car was traded in and the title-retaining contract called for payment of 24 notes at $66.95, due monthly. Mrs. Tait came from Virginia to Little Rock to spend some time with her mother, who resides here.\nDuring the late afternoon of October 30th the car was parked on Main street while Mrs. Tait and her mother went shopping. There is a qualified admission by Mrs. Tait that she was delinquent on two of her notes.\nThe qualified admission of delinquency relates to correspondence between Mrs. Tait and N. G-. Filley. Mrs. Tait wrote from 2605 West Markham St. explaining that imperative ear repairs would require a substantial cash outlay. She said that the bills would cause a heavy financial burden for several months, and asked that payment of the September note be deferred. Filley replied Sept. 23d, saying: \u201cI have set up your next payment and was only too glad to do so. If any more is needed please feel free to request it. You do not need to send any receipts. Your word is confirmation enough for me.\u201d\nWhen Mrs. Tait and her mother completed their shopping chores Mrs. Tait found that the car had been moved. Apprehending that some traffic law had been violated she inquired of a nearby policeman who informed her that a Union Motor Company wrecker had taken the car. She called the motor company and was told that a North Little Rock police official had authorized the removal. Specifically, Mrs. Tait was informed that the car had been taken on a \u201cwork order.\u201d The gist of this conversation is that a man named R. L. Taylor had requested that the car be picked up by Union Motors. Taylor represented the Filley Company.\nHaving failed to get satisfaction from Union Motors, Mrs. Tait employed legal aid, with temporary negative results. The car was locked and its windows closed when it was parked. A diamond wedding ring had been left in the glove compartment, and there were other personal effects. Taylor talked by telephone with Mrs. Tait the evening of Oct. 30th and asked what he should do with her personal property. He later drove to the home of Mrs. Tait\u2019s mother, and there were other conversations, including an offer by Taylor to settle for $1,000 cash. Mrs. Tait asked how much time she could have to raise the money and Taylor replied that he was leaving the next morning at nine o \u2019clock for Florida and would take the car. Mrs. Tait further testified that Taylor told her $1,000 was the amount Union Motors would pay for the car, against which there was a balance of $1,279. E. C. Davis, one of the owners of Union Motors, testified that after the dispute arose he declined to allow Taylor to take the automobile. He knew Taylor represented Filley Motor Co.\nThe complaint alleged that Union Motors \u201cunlawfully, forcibly, and surreptitiously\u201d took the car, which, with personal property appropriated, was worth $1,679.09. There was a prayer for $3,000 punitive damages, but this item passed out of the case without objection.\nThe answer was general, each defendant \u201cspecifically denying each and every material allegation.\u201d\nThe attorney for appellant, in his opening statement, conceded that on the afternoon of October 30th a telephone call came to its service manager. The request was that a wrecker be sent to Main Street. The wrecker driver found Taylor at the place designated, with a policeman. Taylor pointed to the Tait car and said \u201cthis is the one we would like for you to pull in.\u201d At that time Union Motors did not know of appellee\u2019s interest. While the policeman directed traffic the wrecker was hooked on to the car.\nContinuing with his opening statement the attorney said: \u201cAdmittedly the ear was locked. It was in gear and the brakes were on, and the wrecker man could not pull a car in that condition; so someone did break the vent glass. When I say \u2018break\u2019 I mean [he made] a hole just large enough to put a wire through; but they did [do that]; they opened the vent glass and opened the door, and the car was taken directly to Union Motor Company.\u201d\nThere was the further explanation that a few minutes after the wrecker left J. C. Scruggs of Union Motors received a call from Mrs. Tait, and he told her the car was at the company\u2019s place of business. He also declined to surrender it. Likewise, when Taylor came in, Scruggs refused to let him take the car. The testimony quoted Taylor as having said: \u201cScruggs, this is my automobile. It doesn\u2019t belong to Mrs. Tait. She bought it from our company, and knowingly she is in default in her contract; she hasn\u2019t made payment.\u201d Counsel for Mrs. Tait objected on the ground that Filley was not a defendant. The suit, it was insisted, charged Union with conversion; but now, said the attorney, the company undertakes to justify its action on the ground it was acting for another. The court\u2019s ruling was that under the pleadings Filley Motor Company\u2019s interest was immaterial.\nIn objecting to the ruling defendant\u2019s counsel said that within three days from the time the car was taken plaintiff\u2019s attorneys were notified by letter that Union took the car for the Filley company; that it was holding the car as bailee and not in hostility to the plaintiff\u2019s title, hence it was proper to prove attending circumstances. In effect the request was that an amendment to the answer be permitted, or that the answer be treated as amended to correspond with the evidence.\nTo better understand the court\u2019s reason for rejecting the amendment it is necessary to refer to other procedural matters. The trial was Feb. 18, 1954, the complaint having been filed Nov. 3d, 1953. November 24 appellant\u2019s attorneys wrote counsel for appellee that \u201cIn the near future we are going to file an intervention on behalf of Filley Motor Company, and [when this is done] a copy will be forwarded to your office. \u2019 \u2019 January 5, 1954, appellant\u2019s counsel wrote:- \u201cWe have heretofore intimated to you that we might file an intervention on behalf of Filley Motor Company. . . . After duly reviewing this file we see no basis for any such intervention, and so far as we are concerned the case will proceed to trial on the basis of the pleadings.\u201d\nPresumptively \u2014 an inference deducible from a statement by the court \u2014 Mrs. Tait had returned to Virginia and made the trip to Little Rock for the particular purpose of having the case tried. (The Judge spoke of \u201ccoming four or five hundred miles\u201d.)\nFirst \u2014 Court\u2019s Refusal to Permit Answer to be Amended. \u2014 Instances are relatively few where an appellate court has predicated reversible error upon a refusal by the trial court to permit pleadings to be amended after trial has begun over objections of the adverse party. The discretion to overrule such motions must of necessity rest with the tribunal of first address, and this determination is not interfered with unless an abuse of authority is clearly shown in circumstances where the ends of justice would be defeated. Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645.\nIn the ease at bar appellee\u2019s counsel had a right to rely on the letter of January 5th containing an assurance that trial would proceed on the issues then joined. Filley Motor Company was not a party, nor were its rights suggested. But, says appellant, opposing counsel had information respecting the Florida corporation\u2019s interest in the transaction, therefore surprise must be eliminated. True it is that inter-party contacts, relationships, and conversations were such as to suggest a possibility that Union would undertake to justify its action by an affirmative defense in the nature of justification. On the other hand appellee had a right to assume that Filley had concluded not to run the risk of entering its appearanee in this, jurisdiction, electing to chance the result on Union\u2019s ability to skirt the danger. At the time it made the choice there was a demand for $3,000 as punitive damages. In any event Filley collaborated with Union in making the choice of non-entry and is bound by that decision.\nSecond \u2014 Could Appellant Show the Special Capacity in Which it Acted\u00b6 \u2014 Appellant pleads the scope of its rights under the general denial, Ark. Stat\u2019s \u00a7 27-1121, citing 65 Corpus Juris, p. 94, \u00a7 158 (b), and \u00a7 161; (c), p. 96. This plea, says the text writer, puts in issue plaintiff\u2019s ownership of the property and right to possession, and permits the defendant to introduce any competent evidence which will overcome such allegations. . . . Thus, defendant may show that the property was not received by him; and, although he took the property, the taking was with the plaintiff\u2019s consent and in pursuance of an agreement with the parties, and that he had a valid excuse for failure to deliver the property on demand, \u201cthereby repelling any inference of conversion deducible therefrom, [and] that the taking was not wrongful, but by authority of law.\u201d See, also, 53 American Jurisprudence, p. 938, \u00a7 169. But a contrary result is shown by the Corpus Juris citation (\u00a7 157-a), the statement being that \u201cA general denial puts in issue only the facts alleged in the complaint.\u201d\nThe holding in Barnett Bros. Merc. Co. v. Jarrett, 133 Ark. 173, 202 S. W. 474, is that \u201cWhere the taking and appropriation of [personal property] by a third person was in disregard of the rights of the mortgagee the cause of action arises as for conversion. [But] if appellee held the property merely as bailee of the mortgagor, and not in hostility to the rights of the mortgagee, this may be proved as a defense to the action upon denial of the charge of wrongful taking and conversion.\u201d Bethel v. Giebel, 101 Mont. 410, 55 Pac. 2d 1287, 104 ALR 1150, is cited by appellant with the comment that \u201cFollowing the Bethel decision, and in the annotations, cases are quoted from twelve separate jurisdictions, all upholding the rule that in actions of trover or conversion a defendant, may. show under a general denial a special title or right of possession \u2014 as, for instance, by way of lien. \u201d\nIn determining whether Union had a right to show that it acted as agent for Filley and that in taking physical possession of the car it became \u2014 as appellant expresses it \u2014 a . special bailee, we must consider the circumstances of appropriation. Assuming, for the purpose of this opinion, all that appellant claims and testing the trial court\u2019s action in directing a verdict under the rule that this course was improper if there had been substantial evidence to sustain the defendant\u2019s position, we have this situation:\nMany of our decisions, citing applicable statutes, hold that a seller who has retained title to a chattel may, upon default in payment, retake the property and thereby cancel the debt; or he may sue to recover the debt and thus affirm the sale and waive the reservation of title. But, while with delivery no property absolute passes to the vendee until performance of the condition as to payment, \u201cNevertheless the buyer acquires a defeasible interest in the property.\u201d National Bank of Arkansas v. Interstate Packing Co., 175 Ark. 341, 299 S. W. 34.\nWhile many of our opinions employ, the word \u201cretake\u201d in an extremely liberal manner, an examination of some of them discloses that the writ of replevy had been employed. In others the contract provided that if default occurred the seller could take the property wherever found; and we have held that this may be done without court process, provided the method employed is peaceable. Ellis v. Smithers, 206 Ark. 247, 174 S. W. 2d 568.\nAn example of peaceable repossession or \u201ctaking\u201d is Rutledge v. Universal C. I. T. Corporation, 218 Ark. 510, 237 S. W. 2d 469. The contract authorized the seller to take possession \u201cwithout any legal process\u201d in the event of default. The evidence was conclusive that force was not employed. On the contrary every reasonable inference pointed to the appellant\u2019s acquiescence. In affirming a directed verdict for C. I. T. we said: \u2018 \u2018 Thus it appears that [the credit corporation] had a right to take possession of the automobile . . . without legal action, just so long as it did not use any force, deception, or fraud.\u201d\nTo the same effect is Commercial Credit Co., Inc., v. Ragland, 189 Ark. 349, 72 S. W. 2d 226. The contract of sale, with def\u00e9rred payments, contained language intended to vest in the seller \u2014 in ease of the buyer\u2019s failure to make prompt payment of the installments \u2014 a right to retake the car, \u201cwherever found, without notice or demand on the purchaser, and to sell it publicly or privately,\u201d etc. Ragland, the conditional purchaser, defaulted on a note due Dec. 2d. The latter part of that month a representative of the credit company went to Ragland\u2019s place of business in Stuttgart to collect, and declined to accept a personal check because another had been turned down by the bank. While discussions regarding payment were continuing the agent went to the car, presumptively in Ragland\u2019s presence, and removed the ignition key. Shortly thereafter Ragland sent his check directly to the credit company. It was accepted and paid. Demand was made for return of the key, but without avail. A mechanic suggested to Ragland that he \u201cwire around\u201d the lock, and explained how this could be done.\nOn February 5th the credit company received Rag-land\u2019s check covering the payment due January 2d. Again there was a demand for return of the key, and refusal. Thereupon Ragland declined to make further payments. He left the car with the agency from which it was purchased, C. D. Conrey Company, to have it repaired. These repairs were necessitated, according to substantial testimony, because Ragland was forced to wire around the ignition lock.\nWith refusal by Ragland to make further payments until the key was returned, the credit company directed Conrey to deliver the property to it in Little Rock, and this was done. Ragland then sued the two corporations -for the value of the car, conversion being alleged. It was sold for $215. From a judgment in Ragland\u2019s favor for $223.45 Commercial appealed, and lost.\nIn discussing the appellant\u2019s conduct the: opinion (written by Mr. Justice Frank Gr. Smith) says: \u201cHaving extended indulgence, which it was not required to do, by accepting the delayed payments, the credit company should, before taking possession of the truck, have advised Ragland that the practice would no longer be continued. ... . There appears to' be no question \u2014 at least the jury was warranted in so finding \u2014 that the credit company took the key for the purpose of preventing appellee having the use of the car. We conclude therefore that the jury was warranted in finding that the conversion was wrongful. ...\u201d\nThe same broad principle was affirmed in Patton v. Alexander, 202 Ark. 883, 154 S. W. 2d 1. Patton, a dealer, had sold a truck to Alexander, retaining title and allowing deferred payments. The seller carried a blanket fire insurance policy covering its interest. The truck was partially destroyed by fire. \u201cAlexander was in default with his payments at the time of the fire,\u201d says the opinion, \u201cand the motor company had the right to repossess the truck on that account. Whether it did so\u2014 thereby converting the truck \u2014 is another disputed question of fact. . . . The truck burned in Alexander\u2019s yard and the motor company sent its representative to haul it into its garage. The testimony on Alexander\u2019s behalf was that this was done over his protest, \u2019 \u2019 but this was denied.\nThe insurance company paid Patton, and the adjuster testified that fire damage was total and that his company had settled with Patton on that basis. But after satisfying Patton the insurance company sold the salvage to the motor company for $70, and it in turn sold the property at a profit.\nOur decision was that \u201cThese transactions, made without consulting Alexander and without his knowledge or consent, constituted a conversion of the truck, and the motor company became liable. . . (See Barham v. Standridge, 201 Ark. 1143, 148 S. W. 2d 648, citing Franklin v. Spratt, 174 Ark. 268, 295 S. W. 26.)\nIn a case where there was evidence that a finance company holding default paper wrongfully took the car key, a judgment for punitive damage was affirmed, as was also an award to compensate. Kinsinger Acceptance Corporation v. Davis, 223 Ark. 942, 269 S. W. 2d 792.\nWhile the evidence is undisputed that Mrs. Tait wrote Filley and that he assured her the September payment would be carried, \u2014 and further, that she might reasonably expect additional indulgence \u2014 the trial court\u2019s ruling restricted scope of the examination to the immediate conduct of Union Motors. In the light of assurances given before the trial began we do not think this was error \u2014 a conclusion that carries with it a disposal of appellant\u2019s contention that the court erred in not permitting Mrs. Tait to be cross-examined regarding statements she had made in a discovery deposition.\nIt is admitted, with commendable candor, that the car was broken into. Filley had written Mrs. Tait at her mother\u2019s Little Rock address, and therefore knew where she was, or could easily have ascertained. We think the conversion occurred when Union adopted unlawful means in acquiring possession of the car. Public policy does not countenance such a course.\nIt is urged that evidence respecting value of the car and ring is wanting, but the contention cannot be sustained.\nAffirmed.\nMr. Justice George Rose Smith and Mr. Justice Ward dissent.\nKensigner Acceptance Corporation was named as a defendant, but the cause as to it was dismissed. Union Motors Company is a partnership, owned by R. C. Davis and W. G. Boone. For convenience the defendant is referred to in this opinion as Union Motors, or Union Motors Company.",
        "type": "majority",
        "author": "Griffin Smith, Chief Justice."
      },
      {
        "text": "Ward, J.,\ndissenting. The majority opinion in this case in effect finds: (a) That there is some question about appellee being behind in her payments when Taylor, agent for the Filley Motor Company, took possession of the car; (b) That under the general denial filed by appellant it had a right to introduce evidence to show that the Filley Motor Company repossessed the car under the terms of the Conditional Sales Contract, and; (c) That such a defense was not good because force was used or a trespass was committed when the car was taken by appellant. In reply to these findings I make these comments: (a) In my opinion the testimony clearly shows that appellee was behind two months in her payments. HoAvever it is immaterial as to Avhat the testimony shows in this connection because this is a fact situation which can be deAvdoped along Avith other matters of defense upon a remand; (b) I am in thorough agreement with this finding, and ; (c) I am not in agreement A*dth this finding by the majority, and my reasons are hereinafter set out.\n1. Applicable Law. It is conceded that the Conditional Sales Contract in this case Avas executed in Florida. Therefore the rights of the Filley Motor Company under said Conditional Sales Contract is governed by the law of Florida. This court has heretofore decided this exact point in the case of Rutledge v. Universal C. I. T. Credit Corporation, 218 Ark. 510, 237 S. W. 2d 469. In that case the Conditional Sales Contract was executed in Georgia and this court said: \u201cA contract having been executed in the State of Georgia it must be construed according to the laws of that state.\u201d\n2. The Florida Law. The Supreme Court of Florida has clearly passed upon the question presented here in several cases, one of which is C. I. T. Corporation v. Reeves, 112 Fla. 424, 150 So. 638. The court there, in referring to a Conditional Sales Contract, stated:\n\u201cThe provisions of the contract above referred to were in contemplation of law a complete legal justification for the holder of the contract, provided he committed no trespass or assault in doing so, to retake possession of the motor vehicle covered by it, upon default of the buyer, and in so doing the holder was not required to serve any notice or make any demand on the buyer personally as a condition precedent to retaking possession, since the contract in terms provided that the holder of it might, without any previous notice or demand for performance, and without legal process, enter any premises where said chattel might be found, and take possession thereof, after which it was further agreed that the holder, after so retaking possession, could make such disposition of the property retaken, as it might see fit. \u20197\n3. Trespass or Assault. Did Appellant commit a trespass or assault in taking the car in this case? In my opinion (a) no assault or trespass was committed and (b) it is immaterial.\n(a)- In this instance all appellant did was to break a glass in the door of the automobile in order to get it out of gear. This of course was not an assault upon the person of appellee. Since, under the law of Florida, appellant [as agent] had a right to take and keep the automobile, it naturally follows that it had a right to do anything it pleased to the automobile. What was done in this case by appellant is unlike cases where this court has said that the holder of a Conditional Sales Contract has no right to repossess a car if force is used against the person of the owner, as in Kensinger Acceptance Corporation v. Davis, 223 Ark. 942, 269 S. W. 2d 792.\n(b) Conceding for the sake of argument that appellant did commit a trespass or assault in repossessing the car in question, it did not, under the law of Florida, affect the merits of this case. In the case cited above this very question was considered and the court said:\n\u201cBut damages for such trespass and assaults, if any, are excluded from consideration on the trial of an action involving solely the question of the right of possession under the contract, after possession has been peaceably retaken and is being held by the defendant, as was the case here.\u201d\nObviously, by the expression \u201cpeaceably retaken,\u201d the court meant that the car was taken without using force on the owner, otherwise the quotation copied above means nothing.\nFor the reasons above mentioned the cause should have been remanded for a trial on the merits.",
        "type": "dissent",
        "author": "Ward, J.,"
      }
    ],
    "attorneys": [
      "Barber, Henry <& Thurman, for appellant.",
      "Arthur Frankel and U. A. Gentry, for appellee."
    ],
    "corrections": "",
    "head_matter": "Union Motor Company v. Tait.\n5-560\n276 S. W. 2d 690\nOpinion delivered March 21, 1955.\n[Rehearing denied April 18, 1955.]\nBarber, Henry <& Thurman, for appellant.\nArthur Frankel and U. A. Gentry, for appellee."
  },
  "file_name": "0807-01",
  "first_page_order": 829,
  "last_page_order": 841
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