Opinion
34899.
DECIDED JANUARY 14, 1954.
Trover. Before Judge Etheridge. Fulton Civil Court. August 6, 1953.
Harris Gower, for plaintiff in error.
Sam G. Dettelbach, contra.
The plaintiff — having made out prima facie case in a trover suit by proof of his peaceable possession of the property sued for and the wrongful interference therewith by the defendant, who was neither shown to have been wrongfully deprived of the property nor to be the true owner thereof — was entitled to a verdict in his favor for the value of the property converted; and, the verdict in favor of the defendant being unauthorized by the evidence, the court erred in denying the plaintiff's motion for new trial.
DECIDED JANUARY 14, 1954.
Atwood H. Powell brought a trover suit against Sam Riddick, and alleged that Riddick was in possession of certain tires and tubes, as set out in a list attached, which were worth $3,500 and to which Powell claimed title; that Riddick refused to deliver the tires and tubes to Powell; and that the described tires and tubes were taken from Otwell Bramlett's Feed Store in Forsyth County, on or about April 1, 1951, by detectives Standridge and Hamby, who put Riddick in possession thereof. The defendant answered, denying that he had ever been in possession of the tires listed in the petition, and alleged that he did not have any tires belonging to the plaintiff and did not wrongfully withhold any property belonging to the plaintiff. The jury returned a verdict in favor of the defendant Riddick. Powell's motion for a new trial was denied, and he excepts to that judgment, insisting only upon the general grounds of his motion.
The plaintiff Powell testified that he was running a service station known as the Alpharetta Motor Company, but went out of business in February, 1951. He had some tires and tubes and stored them with Otwell Bramlett in Cumming, Georgia, in February or March of 1951. The tires and tubes stored there were set out in a list which the plaintiff and one of his employees had prepared. The plaintiff testified that he had bought some of the stored tires from Dunlop Tire Rubber Company, some from Witt Tire Company, and some from W. Palmer Young. Checks drawn by the plaintiff to the order of these three dealers were for some of the tires later taken by the defendant Riddick. Powell further testified that he never bought tires from Riddick or from Lee Tire Company, although he had bought Lee tires from Young and from Gordy Tire Company. He did not know what tires were taken out of the warehouse of Otwell Bramlett.
The defendant Riddick, called by the plaintiff for the purpose of cross-examination, testified that he owned and operated the Riddick Sales Company, and was called to Otwell Bramlett's warehouse by detectives Standridge and Hamby about April 1, 1951; that he took a truck, saw the tires loaded onto it, and made an inventory of them; and that he carried the tires and tubes back to his place of business and sold them.
W. Ralph Otwell testified: that he was in charge of the warehouse where Powell had stored some tires; that on about the first of April, 1951, Riddick and two plain-clothes men took away the same tires which Powell had put there; that no one had taken any of the tires out before that time; that he had never stored tires for anyone else; that the building was locked or someone was there all the time; and that "Riddick Sales Company" was printed on some of the cases of tubes.
W. Palmer Young testified that he was also in the tire business in Alpharetta in 1950 and 1951; that he bought some tires and tubes from Riddick Tire Company and thought he sold some of them to Powell in 1950; that he sold all kinds of tires — Firestone, Lee, Atlas, and Goodyear; and that he had bought some Lee tires from Riddick and some from the Lee Tire Company.
Nell Hunter testified that she had charge of the books of account of Lee Tire Rubber Company, and had found no record of any sales to W. Palmer Young in 1949 and 1950; and that Lee Tire Rubber Company sold Lee tires to Riddick Sales Company, as a wholesale outlet, but did not sell to Gordy Tire Company or to Witt Tire Company.
The defendant Riddick testified that all of the recapped tires taken had his mark upon them, and that quite a few of the tires had his name stamped on them. The boxes of tubes had "Riddick Sales Company" on their sides. He was the sole distributor for D. J. tubes in Atlanta, but had sold none of them to Powell, although he had sold some to Young. He testified that he had been in possession of those tires and had never sold them to anybody, although some of the tires had his customers' names written on them and were being held. Some of the boxes of tubes had his name on them, and his name had been cut off of some others. Seventeen tires had his name on them. He never sold Young any recapped truck tires, although he had sold him some other recapped tires. He left the battery cables and some used tires at the warehouse.
Caroline Turner, employed by Dunlop Tire Rubber Company, testified that she found no account for W. Palmer Young in that company's records for 1949 and 1950, although she also identified a list of invoices of sales to Powell of Dunlop tires and tubes over a period running from 1948 to February 12, 1951.
James Sexton, an employee of Riddick, testified that he went to Otwell Bramlett's warehouse in Cumming, Georgia, and made the list of tires and tubes taken; that twelve of the tires had labels of the Riddick Sales Company upon them; that some of the boxes of tubes were labeled, too; that they picked up 60 tires; that Palmer Young had bought tires from Riddick, and that six of the recapped tires were marked.
H. J. Standridge testified that he was a detective with the Atlanta Police Department; that he went to Otwell Bramlett's warehouse where some tires were found; that he talked to Powell about the tires after they had been picked up; that Powell stated he had bought some tires from Palmer Young, some from Riddick, and some from Lee Tire Company.
G. C. Hamby, also employed by the Atlanta Police Department, testified that he went to Otwell Bramlett's warehouse in Cumming, Georgia, and found about 100 tires and 150 or 200 tubes; that he had previously talked with Powell about the tires, and Powell said he didn't know anything about any tires and only had a few tires in a barn behind his house; that Powell later said he had bought some tires from Palmer Young but had disposed of them, and had bought some from Lee Tire Company and also from Dunlop Tire Company; that he asked Powell about some D. J. tubes, and Powell did not recall where those came from; that the D. J. tubes were stenciled with "Riddick Tire Sales Company" when they were recovered; that Powell said he did not know anything about the Riddick label or where it came from; that the tires were recovered on April 13, 1951, stored with Riddick until June 19, and released to Riddick on that date.
The documentary evidence showed that Powell had stored 79 tubes and 73 tires, excluding the used tires which Riddick said he had not taken. Ten of these tires were recapped, and 32 of them were truck tires. According to Riddick's list, he took 80 tubes and 60 tires, of which 30 were truck tires and 9 were recapped. The police list showed 80 tubes and 57 tires, including 32 truck tires and 9 recapped tires.
To recover in a trover action, the plaintiff must first show either title or the right of possession ( Underwood v. Underwood, 43 Ga. App. 643 (6), 645, 159 S.E. 725; Carter v. Hornsby, 68 Ga. App. 424, 428, 23 S.E.2d 95); and where, as here, the plaintiff bases his trover suit on his claim of title to the property, the issue for determination is that of title ( Little v. Lawrence, 56 Ga. App. 524 (1), 193 S.E. 181); and, in order for him to recover, he must do so on the strength of his own title ( Jones v. McCowen, 34 Ga. App. 801 (1), 131 S.E. 290), and of course the burden of showing his title is on the plaintiff. Anderson v. Reese, 85 Ga. App. 437 ( 69 S.E.2d 656).
The evidence showed conclusively that Powell, the plaintiff, had possession of the tires and tubes in question when he stored them with Otwell Bramlett. Possession of property stands as prima facie evidence of title, until evidence to the contrary is introduced. Haas Howell v. Godby, 33 Ga. App. 218 (3) ( 125 S.E. 897), and citations; Southern Ry. Co. v. Campbell Coal Co., 41 Ga. App. 83, 87 ( 151 S.E. 661); Camp v. Turner, 19 Ga. App. 452 ( 91 S.E. 910); Gate City Fire Ins. Co. v. Thornton, 5 Ga. App. 585 (2) ( 63 S.E. 638); Hinchcliffe v. Pinson, 87 Ga. App. 526, 529 ( 74 S.E.2d 497); Gillespie v. Chastain, 57 Ga. 218. Code § 105-1702 provides: "Mere possession of a chattel, though without title or wrongful, shall give a right of action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession."
Riddick, the defendant, testified that he had been in possession of the tires and tubes in dispute, some of which bore his mark, and that he had never sold them to anybody, although he had been holding some for sale to certain persons. Riddick was apparently testifying with reference to the time before Powell acquired possession of the tires. But this evidence was insufficient to show that Riddick was either the true owner of the tires or had been wrongfully deprived of their possession. The record is remarkably silent as to the circumstances under which Riddick parted with his possession of the tires. Furthermore, Riddick testified: "Prior to June, 1951, the brands of tires my company distributed were Lee, Dunlop, and McCrary," but there were Cooper, U.S., and Fisk tires among those taken by Riddick. If the possession of these tires was previously in Riddick, the title to the tires followed their possession, presumptively at least, and was shown to be in Powell at the time the city detectives seized the tires, without warrant or process so far as the record shows, and turned them over to Riddick.
The plaintiff — having made out his trover case by proof of his peaceable possession of the property sued for and the wrongful interference therewith by the defendant, who was neither shown to have been wrongfully deprived of the property nor to be the true owner thereof — was entitled to a verdict in his favor for the value of the property converted; and the verdict for the defendant was not authorized by the evidence.
The court erred in denying the motion for new trial.
Judgment reversed. Felton and Quillian, JJ., concur.