1. A charge to the jury should be construed as a whole.
(b) Where a person brings a suit as administrator and the jury returns a verdict for the person without describing him as administrator, the verdict will be construed to be for him in his representative capacity.
(c) A trover suit may be predicated upon a mere right of possession of the chattel for the recovery of which the action is brought. 3, 4. In a trover suit where an election is made to sue for the property and its hire, the hire will run from the date of the conversion.
5. In this case, the plaintiff being the personal representative of a deceased person, the defendant is not permitted to testify in her own favor as to transactions or conversations with the deceased person.
6. There being a conflict in the evidence the general grounds of the motion for new trial are without merit.
Mrs. Carolyn West Ruis, as administratrix of the estate of James Clinton Ruis, filed an action in trover in the City Court of Albany against Mrs. Bloncile Ruis Youngblood to recover a 1956 Cadillac automobile.
The petition alleged in substance that the automobile was worth $5,000; that the value of the hire of the automobile was $1,000 per year; that the plaintiff had title to the automobile and the defendant refused to deliver it to her.
The answer admitted possession of the automobile and further alleged that the defendant, not the plaintiff, had the title and right of possession of the automobile.
On the trial of the case the plaintiff testified that she was the widow of James Clinton Ruis, and the administratrix of his estate, and that the yearly hire of the automobile was approximately $1,000 per year. The plaintiff introduced in evidence a bill of sale to the automobile in question, dated January 27, 1956. The bill of sale conveyed the title of the automobile from Hawkins Motor Company, Thomasville, Georgia, to J. C. Ruis.
R. J. Allen, a witness for the defendant testified in part: that he saw J. C. Ruis sign a bill of sale conveying title to the automobile to the defendant and that he witnessed the bill of sale; that after the execution of the bill of sale he heard J. C. Ruis tell the defendant to give him a dollar to make it legal.
R. A. Davis, a witness for the defendant, testified substantially the same as R. J. Allen as to the execution of the bill of sale from J. C. Ruis to the defendant.
The defendant introduced a bill of sale to the automobile in question, dated May 30, 1956, which conveyed title from J. C. Ruis to the defendant.
James E. Plamer, a witness for the plaintiff, testified that the tag on the automobile had never been transferred from J. C. Ruis to anyone else.
Mrs. Elsie Denvin, a witness for the plaintiff, testified in substance: that she was the sister of the deceased, J. C. Ruis, and that she was familiar with his signature; that the name J. C. Ruis on the bill of sale introduced by the defendant was not the signature of J. C. Ruis.
Mrs. Bloncile R. Youngblood, defendant, testified that: there had been a lot of hard feelings between her and Mrs. Elsie Denvin; that she had the automobile in her possession prior to the time the bill of sale was executed; that it had been in her possession since May 30; that the deceased had borrowed the automobile from her a few times.
Bill Faison, a witness for the plaintiff, testified in part: that he was service manager of Aultman Motor Company; that J. C. Ruis brought a 1956 Cadillac automobile to Aultman Motor Company for repairs and a service job was done on the automobile on June the first and seventh.
The jury returned a verdict for the plaintiff for possession of the automobile and $500 hire. The defendant made a motion for new trial which was denied. The defendant excepts to that ruling.
"You would then state in your verdict the reasonable hire of the car or value of the car for the time the defendant had it. The plaintiff seeks to recover the sum of $1,000 so you must state the amount in your verdict, whatever you find as reasonable hire of the car for that time." The defendant insists this charge was error because it instructed the jury that the plaintiff was seeking to recover $1,000 as hire for the automobile, whereas in reality she was only seeking to recover for the period from June 15 to the date of the trial. In a supplemental charge the judge instructed the jury as follows: "Gentlemen of the jury, the plaintiff alleges in her petition that the yearly value of the car was $1,000. She is seeking to recover a sum that would represent the reasonable value of the car for the time defendant had it. She claims the defendant had the car from June 15 up until now. Whether she did or did not, that is for you to determine." The supplemental charge cured any error the judge made bin the original charge to the jury in regard to the amount of hire the plaintiff was seeking. Ground 1 is without merit.
2. (a) Special ground 2 contends that the verdict was illegal and void. The verdict read as follows: "We find in favor of the plaintiff, Mrs. Ruis, in the amount of $500 and possession of 1956 Cadillac."
The defendant insists the verdict was void because there was no election to sue for the property and its hire shown in the record. This contention is without merit because the fact that the jury returned a verdict for the property and hire, together with the entering of judgment thereon is sufficient to show that such an election was made. Wolf v. Kennedy, 93 Ga. 219 (18 S. E. 433); Baker v. Central Grocery Co., 15 Ga. App. 377, 380 (83 S. E. 504); Wilson-Weesner-Wilkinson Co v. Collier, 62 Ga. App. 457 (2) (85. E. 2d 171).
(c) The defendant contends that the verdict was invalid because it awarded the possession of the chattel in the case to the plaintiff, but did not find the title to the same to be in her. The finding was tantamount to a determination that the plaintiff had the night of possession to the chattel. That there may be a recovery of possession of a chattel in a trover action in which the title to the same is not adjudicated is well settled. A trover suit may be predicated on a mere right of possession of the chattel for the recovery of which the action is brought. A. C. L. R. Co. v. Gordon & Co., 10 Ga. App. 311 (3) (73 S. E. 594); Kaufman v. Seaboard Airline Ry., 10 Ga. App. 248 (73 S. E. 592). There are instances in which the night of possession is in one person and another is vested with title to the same personalty. However, the evidence in this case, while in conflict, supported a verdict finding the right of possession to an automobile for which the action was brought to be in the plaintiff.
(d) The defendant further insists that there was no evidence adduced to show the length of time the automobile was in the defendant's possession. This contention is without merit, because the defendant testified that she had been in possession of the automobile since May 30 of that year.
3. The defendant insists that if any hire was to be given it would be from the date of the trial. This contention is without merit. In a trover suit where an election is made to sue for the property and its hire, the hire will run from the date of the conversion. O'Neill Mfg. Co. v. Woodley, 118 Ga. 114 (44 S. E. 980); Schley v. Lyon & Rutherford, 6 Ga. 530; Davis v. Davis, 30 Ga. 296; Commercial Auto Loan Corp. v. Baker, 73 Ga. App. 534 (37 S. E. 2d 636); Garrett v. Atlanta Home Underwriters, 35 Ga. App. 404 (133 S. E. 265); Bank of Blakely v. Cobb, 5 Ga. App. 289 (63 S. E. 24).
"It is incumbent upon you, if you bring in a verdict for the plaintiff, to bring in a verdict for whatever amount she is entitled to for the hire of the car." The defendant insists that the charge was error because it was tantamount to instructing the jury that if they returned a verdict for the plaintiff for the property, they should in turn return a verdict for hire of the automobile. If the jury found that the defendant converted the plaintiff's automobile to her own use, the plaintiff would be entitled to hire from the date of its conversion. The charge was not error and special ground 3 is without merit.
5. Special ground 4 complains that the trial judge erred in excluding testimony of the defendant as to a conversation between herself and the deceased, J. C. Ruis, regarding the bill of sale the defendant introduced in evidence. The defendant contends that this testimony was admissible because testimony of a like nature had been previously admitted without objection. While it is true that R. A. Davis and R. J. Allen testified as to this conversation between the deceased and the defendant, they were third parties not interested in the suit, and not parties to the bill of sale. Their testimony was admissible to explain the conduct or ascertain the motive of the deceased. Code 38-302. The testimony of the defendant was properly excluded because she was a party to the suit and she could not testify in her own favor as to transactions or communications had with the deceased. Code 38-1603 (1).
Copeland v. State, 66 Ga. App. 142, 143 (4) (17 S. E. 2d 288); Rogers v. Rogers, 52 Ga. App. 548, 549 (184 S. E. 404); Boggus v. State, 34 Ga. 275 (2).
Assuming but not deciding that the testimony of the plaintiff and the deceased's sister was negative testimony, it would still have presented a question for the jury's determination. " 'Negative evidence' does not amount to no evidence at all; otherwise the term would be a misnomer. And jurors are not obliged to discard it merely because of the existence of positive evidence in conflict therewith. 'Where the existence of a fact was affirmed by positive evidence and denied by negative evidence, an issue was raised, and the trial judge committed no error in properly submitting such issue to the jury.' Western & Atlantic R. Co. v. Mallett, 23 Ga. App. 367 (2) (98 S. E. 238)." Ga. R. & Bkg. Co. v. Wallis, 29 Ga. App. 706, 714 (116 S. E. 883).
In concluding that there was a conflict in the evidence, we have applied the rule laid down in Copeland v. State, 66 Ga. App. 142, 145, supra, "It is true that a party who is not an expert, but who is acquainted with the handwriting of another, may testify whether a given signature is in the proper handwriting of the person with whose handwriting he is acquainted; but only experts, persons accustomed to and skilled in the matter, of handwriting, may institute comparison between writings of unquestioned genuineness and writings in dispute and give an opinion. Wimbish v. State, supra [89 Ga. 294, 15 S. E. 325]; Piedmont & Arlington Life Insurance Co. v. Lester, 59 Ga. 812; Griffin v. State, 90 Ala. 596, 600 (8 So. 670); McKay v. Lasher, 42 Hun. (N. Y.) 270, 272; Johnston v. Bee, 84 W. Va. 532 100 S. E. 486, 7 A.L.R. 252). The reason for the distinction is obvious. The practiced eye of the expert will enable him to perceive the distinguishing characteristics or features in different specimens of handwriting, and at once to indicate the points of similarity or dissimilarity, though he may be entirely unacquainted with the specimens presented. By long practice and observation he has become skilled in such matters. Not so with the nonexpert. It is only when he has become familiar with the peculiarities of a handwriting, as one becomes familiar with the countenances of his friends or the characteristics of objects of common observation, that he is able to distinguish between it and other specimens that may bear only a slight resemblance to it. Woodman v. Dana, 52 Maine, 9, 15." The rule is followed in Hawkins v. Citizens Bank & Trust Co., 18 Ga. App. 263 (89 S. E. 450) and Bates v. State, 18 Ga. App. 718 (90 S. E. 481). As early as 1854 it was held by our Supreme Court that identity of a person might be established by a witness testifying to facts other than the personal appearance of the witness, such as foot prints or handwriting. Hester v. State, 17 Ga. 130, 133. "A witness may testify to handwriting if he knows the same, and it matters not how that knowledge may be acquired; but it is very clear to our minds that he should have that knowledge before he can testify as to the contents of a writing which is lost." Bone v. State, 86 Ga. 108, 117 (12 S. E. 205).
"It is no objection to the testimony of a witness, that he has come to the knowledge of a party's handwriting since the difficulty arose, nor that means were used to obtain that knowledge: Aliter, if the witness' knowledge was acquired under such circumstances as would show that the party had a motive for disguising it." Reid v. State, 20 Ga. 681 (1).
There is a pronouncement in Bowie & Co. v. Maddox & Goldsmith, 29 Ga. 285, 287 (74 Am. Dec. 61) "We think the court erred also in charging the jury that circumstances could not outweigh direct testimony. Direct or positive testimony might come from a very unreliable person, or coming from a source of great respectability might yet break down under the weight of its own absurdity. It is impossible, therefore, to fix any uniform value upon direct or positive testimony as such. It is equally impossible to fix a uniform value upon circumstantial evidence as such. In many cases the one justly outweighs the other, while in many others the preponderance is precisely reversed." The general grounds are without merit, except as herein stated.
The jury returned a verdict of $500 hire for the automobile. The plaintiff contended that the defendant converted the automobile and had it in her possession from June 15, 1956, to the date of the trial, which was November 28, 1956. The petition alleged that reasonable hire of the automobile was $1000 per year. The period from June 15, 1956, until November 28, 1956, being less than six months, it follows that the jury awarded the plaintiff a larger amount of hire than that sued for. If the plaintiff, defendant in error here, within ten days after the remittitur reaches the clerk of the trial court shall voluntarily write off the amount of the verdict which is excessive, the judgment denying the motion for new trial will be affirmed, otherwise it will be reversed.
If the amount awarded the plaintiff for hire of the automobile had exceeded that shown by the evidence, the whole verdict for hire could be set aside. We cannot hold that the amount of hire found by the jury exceeded that shown by the evidence. The only opinion evidence as to the value of hire fixed it at $1,000 per year which would amount to less than $500 for the actual time expiring between the alleged conversion of the automobile and the date of trial. But the jury could, from the evidence adduced on the trial, have entertained a different opinion from that expressed by the only witness who gave an opinion as to the value of the automobile's hire. McCarthy v. Lazarus, 137 Ga. 282 (73 S. E. 493). The jury is not bound by the witness's opinion as to the value of rent or hire, but may form its own from the data furnished by the evidence submitted. Code 38-1709. Here the jury had proven facts submitted upon which it could predicate its own opinion as to the value of the automobile's hire. This evidential data was the value, model, and age of the automobile. These are generally the determinate facts from which the rental value of an automobile is decided.
Judgment affirmed on condition. Felton, C. J., and Nichols, J., concur.