{ "id": 1719790, "name": "FORD MOTOR CREDIT COMPANY v. George HERRING and Cecil GEISLER", "name_abbreviation": "Ford Motor Credit Co. v. Herring", "decision_date": "1979-11-26", "docket_number": "79-251", "first_page": "201", "last_page": "207", "citations": [ { "type": "official", "cite": "267 Ark. 201" }, { "type": "parallel", "cite": "589 S.W.2d 584" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "213 S.W. 21", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1919, "opinion_index": 0 }, { "cite": "139 Ark. 101", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1596353 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/ark/139/0101-01" ] }, { "cite": "39 Ark. 387", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898705 ], "year": 1882, "opinion_index": 0, "case_paths": [ "/ark/39/0387-01" ] }, { "cite": "15 Ark. 452", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728432 ], "year": 1854, "opinion_index": 0, "case_paths": [ "/ark/15/0452-01" ] }, { "cite": "264 Ark. 818", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668933 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/264/0818-01" ] }, { "cite": "217 S.W. 2d 357", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 8723193, 8723854 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/ark/214/0523-01", "/ark/214/0586-01" ] }, { "cite": "214 Ark. 523", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723193 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/ark/214/0523-01" ] }, { "cite": "102 S.W. 376", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1907, "opinion_index": 0 }, { "cite": "83 Ark. 10", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527184 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/ark/83/0010-01" ] }, { "cite": "29 Ark. 365", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882936 ], "year": 1874, "opinion_index": 0, "case_paths": [ "/ark/29/0365-01" ] }, { "cite": "210 S.W. 141", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1919, "opinion_index": 0 }, { "cite": "138 Ark. 70", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1566943 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/ark/138/0070-01" ] }, { "cite": "84 S.W. 505", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1905, "opinion_index": 0 }, { "cite": "73 Ark. 464", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504039 ], "year": 1905, "opinion_index": 0, "case_paths": [ "/ark/73/0464-01" ] }, { "cite": "5 S.W. 2d 325", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1928, "opinion_index": 0 }, { "cite": "176 Ark. 977", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1399918 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/ark/176/0977-01" ] }, { "cite": "137 F. Supp. 700", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4266674 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/f-supp/137/0700-01" ] }, { "cite": "273 So. 2d 96", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9733984, 9734119 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/so2d/273/0096-01", "/so2d/273/0096-02" ] }, { "cite": "83 P. 2d 539", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1938, "opinion_index": 0 }, { "cite": "183 Okla. 547", "category": "reporters:state", "reporter": "Okla.", "case_ids": [ 8900362 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/okla/183/0547-01" ] }, { "cite": "565 P. 2d 9", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10449533 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/p2d/565/0009-01" ] }, { "cite": "227 Ark. 1141", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705342 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/ark/227/1141-01" ] }, { "cite": "214 Ark. 273", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720046 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/ark/214/0273-01" ] }, { "cite": "222 Ark. 784", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1652926 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/ark/222/0784-01" ] }, { "cite": "202 S.W. 474", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1918, "opinion_index": 0 }, { "cite": "133 Ark. 173", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1575084 ], "year": 1918, "opinion_index": 0, "case_paths": [ "/ark/133/0173-01" ] }, { "cite": "206 Ark. 841", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485144 ], "weight": 2, "year": 1944, "opinion_index": 0, "case_paths": [ "/ark/206/0841-01" ] }, { "cite": "260 Ark. 764", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616809 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0764-01" ] }, { "cite": "223 Ark. 942", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1650349 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/ark/223/0942-01" ] }, { "cite": "232 Ark. 976", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1694150 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/ark/232/0976-01" ] } ], "analysis": { "cardinality": 659, "char_count": 10747, "ocr_confidence": 0.898, "pagerank": { "raw": 9.117775886471854e-07, "percentile": 0.9793756315522643 }, "sha256": "399fe3e7242c47fb26c8ea2db921f2142b9820b28479b9892ff0c9f8f4d95a0c", "simhash": "1:776df84f5c2b1bf4", "word_count": 1755 }, "last_updated": "2023-07-14T22:44:49.696704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Harris, C.J., not participating." ], "parties": [ "FORD MOTOR CREDIT COMPANY v. George HERRING and Cecil GEISLER" ], "opinions": [ { "text": "Frank Holt, Justice.\nThe appellees were purchasers of two pickup trucks which were financed under retail installment contracts with the appellant. The contracts authorized repossession of the vehicles upon the buyer\u2019s default. When each appellee became delinquent on his monthly payments, appellant repossessed the trucks in which various items of personal property were stored. Appellant brings this appeal from a judgment awarding appellees $2,000 in actual damages and $17,000 in punitive damages.\nAppellant first contends that the trial court erred in submitting the issue of conversion to the jury since no element of force, threats of force, or breach of the peace accompanied repossession. In pre-code cases, we have sustained a finding of conversion only where force, or threats of force, or risk of invoking violence, accompanied the repossession. Manhattan Credit Co., Inc. v. Brewer, 232 Ark. 976, 341 S.W. 2d 765 (1961); Kensinger Acceptance Corp. v. Davis, 223 Ark. 942, 269 S.W. 2d 792 (1954).\nArk. Stat. Ann. \u00a7 85-9-503 (Supp. 1977) provides in pertinent part of the code:\nUnless otherwise agreed, a secured party has on default the right to take possession of the collateral. In taking possession, a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.\nHere the contract recited that upon default by the appellee debtors, appellant creditor could invoke the remedies of the U.C.C. \u201cincluding the right to repossess the property wherever the same may be found with free right of entry.\u201d Clearly the appellant had the contractual and statutory authority to repossess the vehicles. Teeter Motor Co., Inc. v. First National Bank of Hot Springs, 260 Ark. 764, 543 S.W. 2d 938 (1976). In the case at bar there was no personal confrontation or contract between the repossession contractor and either of the appellees when the vehicles were repossessed. There was open access to the vehicles parked in a private driveway or adjacent to the houses. Both were removed during the evening hours without entry into, or damages to, any structure. Within a few minutes following repossession of Herring\u2019s truck, he, in a telephone conversation with the repossessor, admittedly demanded only the right to retrieve his personal items, stating \u2018 \u2018they [Ford] can have the truck.\u201d The next day he telephoned appellant Ford asking permission to \u201cpick up\u201d his payments which was refused. Appellee Geisler\u2019s only contact with the appellant was in this same telephone conversation the next day following the repossession. In Teeter, supra, we upheld the right of the seller to repossess the vehicle upon default if it could be done without a breach of the peace as provided in \u00a7 85-9-503. Here the evidence is clearly insufficient to establish a fact question that the repossession of the trucks constituted a conversion.\nEven though the repossession of the vehicles was proper, the question of whether appellant\u2019s subsequent retention of certain personal property stored in the trucks constituted conversion was properly submitted to the jury. Conversion is the \u201cexercise of dominion over the property in violation of the rights of the owner or person entitled to possession.\u201d Thomas v. Westbrook, 206 Ark. 841, 177 S.W. 2d 931 (1944). We have also defined conversion as the wrongful taking or dominion over one\u2019s property in subversion and denial of his rights irrespective of whether there was a demand and refusal for its return. Barnett Bros. Merc. Co. v. Jarrett, 133 Ark. 173, 202 S.W. 474 (1918); Plunkett-Jarrell Grocery Co., et al v. Terry, 222 Ark. 784, 263 S.W. 2d 229 (1953); Meyers v. Meyers, 214 Ark. 273, 216 S.W. 2d 54 (1948); and Westark Production Credit Association v. Shouse, 227 Ark. 1141, 305 S.W. 2d 127 (1957). Here, however, the contract specifically provided that \u201cany personalty in or attached to the property when repossessed may be held by the seller without liability . . .\u201d The property consisted mostly of various pieces of concrete equipment and tools jointly owned and stored in the trucks at the time of the repossession. The appellees were partners in the concrete business. The trucks and equipment were used in their means of livelihood. Although the appellant was authorized under the contract to hold the personal property, it could do so only as long as it was necessary to secure possession of the trucks. Jones v. General Motors Acceptance Corp. 565 P. 2d 9 (Okla. 1977); General Motors Acceptance Corp. v. Vincent, 183 Okla. 547, 83 P. 2d 539 (1938); and Ford Motor Credit Co. v. Waters, 273 So. 2d 96 (Fla. App. 1973).\nAs previously indicated, appellee Herring telephoned the repossession contractor shortly following the repossession and advised him that he \u201cneeded my [his] personal effects and tools out of my [his] trucks.\u201d Herring requested that the contractor remain a few minutes at the local restaurant where the truck was parked until he, Herring, could arrive to discuss the return of the tools and equipment to him. Herring arrived approximately a minute later, and the truck and tools were gone. The morning after the repossession appellant\u2019s employee, in a telephone conversation, denied any knowledge of the tools. A written report by the repossession contractor, dated two days after the repossession, advised appellant about the existence of the personalty in the repossessed trucks. Appellees filed a lawsuit four days after repossession. Appellant released possession of the property to appellees about two months later through arrangements by their attorney. Appellee Herring testified that he and Geisler had to abandon a project due to appellant\u2019s retention of their jointly owned concrete equipment and tools. There is no evidence that the retention of the personal property, following a demand for its return, was necessary to the repossession of the trucks. In viewing the evidence most favorable to the appellees, as we must do on appeal, we hold that appellant is not absolutely shielded from liability by the contract terms when it can reasonably be inferred, as here, that it intentionally withheld the property after a demand had been made for it.\nAppellant next asserts that there was insufficient evidence to support the jury\u2019s award of $2,000 actual damages for the conversion of the trucks and personal property. We agree. As previously indicated, there was a submissible issue only as to conversion of the personalty. Appellant correctly states that the proper measure of damages for the conversion of the personal items was their market value at the time and place of the conversion. U.S. v. Bartholomew, 137 F. Supp. 700(D.C. Ark. 1956); Hardin v. Marshall, 176 Ark. 977, 5 S.W. 2d 325 (1928); American Soda Fountain Co. v. Futrall, 73 Ark. 464, 84 S.W. 505 (1905); and Parks v. Thomas, 138 Ark. 70, 210 S.W. 141 (1919). The fact that the majority of the items were eventually returned to the appellees does not bar recovery of damages for their conversion but may mitigate the damages. Norman v. Roberts, 29 Ark. 365 (1874); and Plummer v. Reeves, 83 Ark. 10, 102 S.W. 376 (1907). Here there was no evidence as to the value of various missing items. As to the items retrieved by appellees, the evidence, as to most items, was primarily based upon the purchase, replacement and rental price. Obviously, the evidence was deficient and did not comport with the recited standard.\nAppellant next contends that the court erred in allowing the appellees to read to the jury a colloquy between counsel which took place during a discovery deposition in a different lawsuit between the parties to this action. The court admitted this verbal exchange between counsel as evidence of agency between appellant and its repossessor contractor. From the record before us, it is impossible to determine the precise issues in the prior lawsuit even though the same parties, lawfirms and incidents were involved. It is argued, however, by the appellees that the conversion of the personalty was in issue there and the same issue is presented here plus conversion of the trucks. Therefore, say appellees, the exchange between the parties\u2019 counsel in the discovery proceeding is admissible. Even so, the parties, however, may modify or amend their pleadings resulting in additional issues upon a remand. Sanders v. Walden, 214 Ark. 523, 217 S.W. 2d 357 (1949); and Loyd v. Southwest Ark. Utilities Corp., 264 Ark. 818, 580 S.W. 2d 935 (1979). Furthermore, the issue of agency was not raised on this appeal.\nAppellant next asserts that the court erred in instructing the jury regarding punitive damages since there was no evidence of force, oppression, or intimidation in connection with the repossession. In Clark et al v. Bales, 15 Ark. 452 (1854), we said the jury \u201chad the right to take into consideration .... the vexation to [plaintiffs] feeling[s], the inconvenience to him arising from the deprivation of his property [hogs], as well as its value, and then to add something by way of \u2018smart money,\u2019 or exemplary damages.\u201d Exemplary damages are proper where there is an intentional violation of another\u2019s right to his property. Kelly v. McDonald, 39 Ark. 387 (1882); Ft. Smith I. & S. Mills v. So. R.B.P. Co., 139 Ark. 101, 213 S.W. 21 (1919); and Parks v. Thomas, supra. In view of the evidence previously recited, we hold that, although the taking was proper, the retention of the personalty after demand for its return constituted a submissible fact question on the issue of punitive damages.\nAppellant\u2019s last assertion for reversal is that AMI Civil 2d 2217 does not accurately state the law on punitive damages in a conversion action and, therefore, the court erred in reciting this instruction to the jury. That instruction provides in pertinent part:\nPunitive damages may be imposed to punish a wrongdoer and to deter others from similar conduct. Before you can impose punitive damages you must find that -knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct [with malice or] in reckless disregard of the consequences from which malice may be inferred.\nWe agree with the appellant that this instruction was formulated for use in negligence cases. See Committee Comment AMI Civil 2d XXIX. It was not designed, as here, without modification to apply in a case of an intentional tort; i.e., conversion.\nReversed and remanded.\nHarris, C.J., not participating.", "type": "majority", "author": "Frank Holt, Justice." } ], "attorneys": [ "Griffin Smith & W. R. Nixon, Jr., by: W. R. Nixon, Jr., for appellant.", "Ray & Donovan, for appellees." ], "corrections": "", "head_matter": "FORD MOTOR CREDIT COMPANY v. George HERRING and Cecil GEISLER\n79-251\n589 S.W. 2d 584\nOpinion delivered November 26, 1979\n(In Banc)\nGriffin Smith & W. R. Nixon, Jr., by: W. R. Nixon, Jr., for appellant.\nRay & Donovan, for appellees." }, "file_name": "0201-01", "first_page_order": 249, "last_page_order": 255 }