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Trover. Fulton Civil Court. Before Judge Camp.
Where the defendant in this trover case was in possession of the property sought to be recovered at the time suit was brought and denied in its answer the plaintiff's allegation of title, proof of conversion was not necessary, and since the plaintiff's evidence showed title to and the right of possession of the property in question, and further showed that the defendant's acquisition of the property was under such circumstances that gave it no right to retain possession thereof as against the plaintiff, a judgment for the plaintiff was demanded, and the court erred in overruling the plaintiff's motion for a new trial which was made after judgment for the defendant had been rendered.
This is a trover case in which the plaintiff sought to recover from the defendant a certain Pontiac automobile to which the plaintiff claimed title or a valuable interest therein. In its answer the defendant denied all of the allegations in the plaintiff's petition including the allegation as to the plaintiff's title. On the trial of the case it appeared that the plaintiff had loaned the automobile in question to his sister, and that while she was driving it, it was involved in a collision which disabled it. The automobile was removed to the defendant's garage, whether by direction of plaintiff's sister or by direction of police officers is not disclosed. After the plaintiff learned that defendant had possession of his automobile, he went to the defendant's garage and inquired of the president of the defendant company as to the charges made by the defendant on account of the towing and storage of the automobile, and when informed thereof, left, apparently not having sufficient funds with him to pay these charges. The evidence was in conflict as to whether the plaintiff ever made a demand on the defendant for the surrender of his automobile.
Here, the evidence shows that the defendant sought to assert its right to retain the plaintiff's automobile on the theory that it held a lien against the plaintiff's automobile for towing and storage charges. The evidence, however, fails to show any contractual relation between the plaintiff and the defendant such as would authorize the creation of a lien. The plaintiff's sister was not constituted by him as his agent merely by reason of his loan to her of his automobile. A fortiori the police officer would not have become plaintiff's agent to contract with the defendant for the towing and storage of his automobile merely by reason of the fact that the automobile was involved in a collision and disabled on the public streets. The mere fact that the plaintiff inquired of the defendant as to the amount of towing and storage charges against his automobile and even indicated that he would have been willing to pay therefor had he been able to do so, falls short of showing any agreement or consent to the charges being made against him or to the defendant's action in retaining his automobile and did not amount to a ratification of the act of his sister or of the police officer in delivering his automobile to the defendant. Insofar as we are able to ascertain this case is squarely on all fours with Wilkinson v. Townsend, 96 Ga. App. 179 (99 SE2d 539), which demands a judgment in this case reversing the judgment overruling the plaintiff's motion for a new trial.
Judgment reversed. Felton, C. J., and Pannell, J., concur.
Rex T. Reeves, Reeves & Collier, contra.
Miles B. Sams, for plaintiff in error.
DECIDED JUNE 16, 1964.
Friday May 22 21:55 EDT

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