Comer v. Rome Chevrolet Co.

Bell, J. 1. Where a petition alleges ownership of property in the plaintiff, a conversion by the defendant, and a measure of damages appropriate to a trover case, the suit will be construed as an action of trover. In such a case the plaintiff may elect in his complaint to take a money verdict in lieu of the property. Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (2 b) (63 S. E. 270); Alexander v. Dean, 29 Ga. App. 722 (116 S. E. 643). 2. Where a son bought and obtained possession of an automobile under a contract of conditional sale, and, on finding himself unable to pay the balance of the purchase-money, delivered the automobile to his father, under an agreement that the father would pay to the vendor the balance due, and that upon his doing so the automobile would become the father’s absolute property, subject only to the right of the son to repurchase the same should he become able to do so, the father had such title and right of possession to the property as would authorize him to maintain a suit in trover against a stranger who wrongfully converted the same. Brown Store Co. v. Chattahoochee Lumber Co., 121 Ga. 809 (49 S. E. 839); City of Atlanta v. Callaway, 137 Ga. 495 (73 S. E. 736); Louisville & Nashville R. Co. v. Dickson, 158 Ga. 303 (123 S. E. 12); Emanuel County v. Thompson, 3 Ga. App. 225 (59 S. E. 603); Mack v. Augusta &c. Ry. Co., 28 Ga. App. 816 (113 S. E. 66); Fender v. Lee County, 31 Ga. App. 604 (121 S. E. 843); Allen v. Southern Ry. Co., 33 Ga. App. 209 (126 S. E. 722); Brown v. West, 35 Ga. App. 444 (2) (133 S. E. 304); Globe &c. Ins. Co. v. Jewell-Loudermilk Co., 36 Ga. App. 538 (8) (137 S. E. 286); Bugg v. Daley, 37 Ga. App. 645 (141 S. E. 323); Hinson v. Seaboard Air-Line Ry. Co., 38 Ga. App. 516 (144 S. E. 384); Ellis Motor Co. v. Hancock, 38 Ga. App. 788 (145 S. E. 518). (a) The fact that the original vendor may have held the legal title to the property will not prevent a recovery by the plaintiff as the true owner, as against the person sued. Candler v. Dodge County Lumber Co., 34 Ga. App. 289 (129 S. E. 289), and cit. 3, “Any distinct act of dominion wrongfully asserted over another’s property in denial of his right, or inconsistent with it, is a conversion. It is unnecessary to show that the defendant applied it to his own use, if [821] lie exercised dominion over it in defiance of the owner’s right, or in a manner inconsistent with it. It is in law a conversion whether it be for 1ns own or any other’s use.” Merchants & Miners Transportation Co. v. Moore, 124 Ga. 482 (52 S. E. 802). Decided January 27, 1930. Porter di Mebane, for plaintiff. Maddox, Matthews & Owens, for defendant. 4. Whoever takes and carries away the property of another without his consent is not absolved from liability as for a conversion by his own good faith in the transaction, and although he may take the property by the consent of one whom, he mistakenly believes to be the owner, he still may be held as for a conversion, where he refuses on demand to surrender the property to the true owner. Flannery v. Harley, 117 Ga. 483 (2) (43 S. E. 765); Ocean Steamship Co. v. Southern States Naval Stores Co., 145 Ga. 798 (3) (89 S. E. 838); Haas v. Godby, 33 Ga. App. 218 (125 S. E. 897), and cit. 5. While the petition in this is construed as an action of trover, the above principles would be equally applicable in an action for damages based upon the same wrong. Although an action of trover will lie in favor of the owner of personal property in every case where the property has been wrongfully converted, trover is not the owner’s sole remedy. He may sue for damages for the injury to, or conversion of, the property, or there may be still other remedies which he can adopt. Atlanta Finance Co. v. Lunsford, 32 Ga. App. 787 (124 S. E. 813). 6. Upon application of the above rulings, the evidence in this ease would have authorized a verdict in favor of the plaintiff under the petition as drawn, and it was therefore error to grant a nonsuit. Judgment reversed. Jenkins, P. J., and Stephens, J., concur.