Opinion
Nov. 19, 1974
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 936
charged plaintiff where there was no evidence showing any damages to the dealer as a consequence of anything but its own conversion.
Johnson, Makris & Hunsaker, P.C., William J. Hunsaker, Denver, for plaintiff-appellee.
Hindry & Meyer, Thomas J. Constantine, Denver, for defendant-appellant.
Van CISE, Judge.
Russ Vento Chevrolet, Inc. (Vento) appeals from a judgment entered against it for actual and exemplary damages for conversion of Payne's automobile. We affirm.
On March 13, 1972, Vento sold and delivered to Payne a new 1972 automobile. While Payne was driving it on March 17, the car stalled in downtown Denver. Vento towed the car to its place of business for repair. It was returned to Payne on Wednesday, March 22, and it ran properly until Saturday when engine trouble developed again. He was able to drive to Vento's driveway, but the car had to be towed from there into the lot. At that time, Payne spoke with salesman Goodro from whom he had purchased the car. Goodro requested him to return the following Monday because the service department was closed.
When he returned on March 27, Payne was informed that Goodro had taken a job in Texas, and was referred to the sales manager, Hall. Payne had heated words with Hall who turned away, walked into his office, and closed the door. The following day, Payne wrote to Vento and demanded either a new car or a refund. Vento did not respond.
On or about April 15, 1972, Vento sold Payne's automobile to Paul Hubbard as a new car, taking in trade Hubbard's 1961 Volkswagen. Hubbard had problems with the car the first day. He called Vento, and it towed the car to its garage for reparis. Hubbard discovered in the glove compartment a paycheck stub and a repair order for the car with Payne's name on them. Hubbard called Payne, who informed him that he still owned the car. The following Monday, Hubbard, in Payne's presence, asked Vento to rescind the contract because Payne owned the car. Only after Hubbard threatened legal action did Vento rescind the contract and return his trade-in.
On or about May 3, Vento notified Payne that his car had been repaired and was ready for pick up. Payne refused the car and sued for conversion. Judgment was entered on a jury verdict awarding Payne $4,393.20 actual and $2,500 exemplary damages.
Challenge To The Array
Before the questioning of jurors was completed, Vento contended that 'the whole jury array has been prejudiced and biased as a result of extensive news coverage concerning various other civil and criminal proceedings' against it in Denver. Change of venue was not requested. See C.R.C.P. 98(f). Vento asked either that the case be tried to the court or that the trial be continued until the conclusion of then pending criminal proceedings against it.
Vento renewed this objection at the end of voir dire, but, subject to that objection, accecped the panel as then constituted for cause. The challenge to the array was denied, and the matter proceeded to jury trial. Denial of the challenge is raised as a ground for reversal.
Historically, challenges to the array have been allowed only on a showing of material departures from the requirements of the law governing the selection of veniremen. See 47 Am.Jur.2d Jury s 229, n. 13, and the cases cited therein. Pertinent provisions of the Uniform Jury Selection and Service Act, 1971 Perm.Supp., C.R.S.1963, 78--1--12, are consistent with this concept. C.R.C.P. 47(c) merely establishes the method for a challenge to array to be invoked, and does not extend the allowable causes of challenge beyond those defined in the Uniform Act.
Vento's challenge to the array, being directed to alleged bias and prejudice of jurors, was properly denied. Litigants are provided ample protection against the effect of any prejudice of individual jurors through use of the challenge for cause. C.R.C.P. 47(e)(7). The voir dire examination of this jury appears in full in the record. It is clear that there was no indication of any bias or prejudice on the part of any person finally selected to serve.
Testimony As To Representations To Second Buyer
At the trial, Hubbard testified, over objections, to representations made to him by employees of Vento at the time he purchased Payne's automobile and at the time he returned it and asked for rescission. Vento contends that this testimony was immaterial, irrelevant and prejudicial, and that admitting it constituted reversible error.
This testimony was offered to prove that Vento exercised acts of ownership or dominion over the automobile inconsistent with the rights of Payne as owner. See Murphy v. Hobbs, 8 Colo. 17, 5 P. 637. It was therefore relevant and material. Further, it was relevant to the claim for examplary damages. As stated in Kane v. Oehler, 62 Mont. 417, 205 P. 245 (1922):
"Evidence of other acts of defendant than those alleged and for which damages are sought, both preceding as well as following the particular acts, is admissible if so connected with the particular acts as tending to show defendant's disposition, intention, or motive in the commission of the particular acts for which damages are claimed. . . .
"Where exemplary damages are claimed, evidence of any fact which legitimately tends to show the motive and intent of the defendant in doing the act complained of is admissible, as, for example, the existence or absence of malice, or other aggravations essential to the allowance of such damages. Hostility at a time subsequent to the injury may be shown as having a tendency to prove that it existed when the injury was inflicted."
Exemplary Damages
Vento contends that the court erred in denying its motion to dismiss the claim for exemplary damages on the conversion claim and in instructing the jury thereon.
A motion to dismiss can only be supported '(w)hen a trial judge, after considering all of the evidence, is convinced that there is no basis upon which a verdict in favor of the plaintiff could be supported . . ..' McSpadden v. Minick, 159 Colo. 556, 413 P.2d 463. There is much in the record to support an award of exemplary damages. The motion was properly denied.
Since there was evidence sufficient to support an award of exemplary damages, the giving of a jury instruction on that subject was proper. The instruction given incorporated the substance of Colorado Jury Instructions 5:3, as revised, and of C.R.C.P. 101(d). It included the requirement for a finding 'beyond a reasonable doubt' as to the circumstances attending the injury, 1971 Perm.Supp., C.R.S.1963, 52--1--28(2). Vento was in no way prejudiced by the giving of this instruction.
Vento's Tendered Instructions
It is next contended that the court erred in refusing to give several other jury instructions tendered by Vento. We do not agree.
The instructions given defining conversion and explaining actual damages accurately state Colorado law. See Murphy v. Hobbs, Supra, as to conversion, and Colorado Kenworth Corp. v. Whitworth, 144 Colo. 541, 357 P.2d 626, as to consequential damages. The form and style in which instructions shall be given to the jury are within the sound discretion of the trial court. Montgomery Ward & Co. v. Kerns, 172 Colo. 59, 470 P.2d 34. Refusal to give Vento's proposed instructions on these issues in the form tendered by him was therefore within the exercise of this sound discretion.
Citing Byron v. York Investment Co., 133 Colo. 418, 296 P.2d 742, Vento contends it was entitled to an instruction that mere temporary exclusion of the owner from possession of his property does not give rise to an action for conversion. Byron involved taking of temporary possession but no interference with ownership. However, in the instant case, Vento, by selling Payne's car and delivering it to the new buyer, interfered with both possession and ownership. The 'mere temporary exclusion' rule enunciated in Byron is not applicable here, and refusal to instruct the jury on it was proper.
Vento also claims error in the court's refusal to instruct on Payne's duty to mitigate damages. In support of this contention, it points to the evidence that after the conviction, the subsequent rescission of the resale to Hubbard, and the re-repair of the vehicle. Payne refused Vento's offer to return the car to him. Moody v. Sindlinger, 27 Colo.App. 290, 149 P. 263, is cited for the proposition that such an offer should be considered in mitigation.
The Moody case, however, does not apply to the present situation. In Moody, a chattel mortgage lender properly repossessed a desk that was partial security for the delinquent loan. By inadvertence, a typewriter and private papers locked in the desk and not covered by the mortgage were also taken. Some papers were returned forthwith, and there was an immediate offer to return the other items. Under these circumstances, the court held plaintiff was obligated to minimize damages by accepting the offer. In contrast to the Moody facts. Vento had disposed of the converted property by resale to Hubbard, and only after its return by Hubbard and a further lapse of over two weeks did Vento then offer to return the car to Payne. The instant case comes within the general rule that '(a) wrong doer cannot, after his conversion of property has become complete, lessen the actual damages recoverable by tendering back the property.' 18 Am.Jur.2d Conversion s 105. Under the facts in this case, it would have been error to have instructed the jury on mitigation of damages.
Vento's Counterclaim
Vento counterclaimed for damages based on the difference between the amount it received on the final resale of the automobile to another customer and the higher price charged to Payne. Dismissal of this counterclaim and denial of Vento's motion to amend to conform to trial evidence was proper. There is no evidence in the record showing any damages to Vento as a consequence of anything but its own conversion.
Judgment affirmed.
RULAND and STERNBERG, JJ., concur.