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Action for damages. Muscogee State Court. Before Judge Followill.
DEEN, Judge.
1. Any error in admitting evidence that the defendant's debtor had made payments on an account shortly before foreclosure was harmless where its own evidence of the account and payments thereon showed the same transaction.
2. Evidence that the appellant creditor of the plaintiff's lessee entered his home in the absence of the family to remove merchandise subject to a security agreement and as to which payments were in default, and in so doing tortiously damaged the plaintiff's real property, supports a verdict for compensatory and punitive damages.
Layman Hutcherson rented a house from the plaintiff Meadows, his father-in-law, which contained, with his other furniture, a stereo, television set, and tires purchased from White Stores, Inc. and in which they had a security interest. The account was in arrears and the merchant filed a foreclosure proceeding, following which certain deputy marshals and the defendant, acting under Code Ann. 109A-9--503 ("Unless otherwise agreed a secured party has on default the right to take possession of the collateral.") went to the home at a time when it was unoccupied and obtained access through the services of a locksmith. They removed the stereo, television and tires at that time; returned later in the day and removed a directional antenna from the roof which in fact belonged to Meadows but which resembled one previously purchased by Hutcherson and covered by the security agreement. In removing the items the defendant's agents left scratches on the living room floor, damaged the roof and removed the plaintiff's antenna. He sued for compensatory and punitive damages in the amounts of $504 and $5,000 respectively. The jury returned a verdict for $504 compensatory and $750 punitive damages, and defendant appeals.
1. The entry was made in March, 1970. Evidence that on January 30 Hutcherson brought this particular account up to date by means of the proceeds of a check introduced in evidence was admitted over the objection that "whether the account was in arrears at this time is not the issue of this suit." Granted that the check as evidence of payment through January was of little probative value where the account again became delinquent, the same evidence was introduced by the defendant who offered evidence of Hutcherson's purchases and payments, including the payment represented by the proceeds of the check. No reversible error appears.
2. It is further contended that there was no evidence to support a verdict for either compensatory or punitive damages. The plaintiff was no party to the contract between Hutcherson and the defendant. He offered evidence supporting his contention that his real estate had been damaged in the amount sued for, and that the aerial removed from his roof belonged to him and not to the debtor. The defendant's testimony indicated that they acted purely on the assumption the aerial belonged to Hutcherson without verification of the fact, and that they made no investigation whatever as to the ownership of the real property or the necessity for damage to the floor and roof. Where, as here, there is some evidence to indicate that the defendant proceeded in wilful disregard of the rights of the owner of the premises, whoever he may have been, unnecessarily inflicted injury on the property, and converted property not belonging to the debtor to its own use, this constitutes wilful and tortious misconduct authorizing punitive damages. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 818 168 SE2d 827).
Judgment affirmed. Bell, C. J., and Quillian, J., concur
Roberts & Kilpatrick, Paul Kilpatrick, Jr., for appellee.
Thomas L. Thompson, Jr., Charles A. Hughey, for appellant.
Friday May 22 14:05 EDT

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