Opinion
43467.
SUBMITTED FEBRUARY 6, 1968.
DECIDED APRIL 2, 1968.
Trover. Bacon Superior Court. Before Judge Hodges.
Summer Boatwright, J. Laddie Boatwright, for appellant.
Leon A. Wilson, II, for appellees.
Since conflicting proof was adduced as to whether there was an unauthorized appropriation by the defendants of certain parts of the automobile which was the subject matter of this action in trover, the trial judge erred in granting the defendants' motion for summary judgment.
SUBMITTED FEBRUARY 6, 1968 — DECIDED APRIL 2, 1968.
J. J. Boatright brought an action in trover in Bacon Superior Court against Padgett Motor Sales, Inc., and certain named officers and agents of the defendant corporation. The petition sought the recovery of a 1964 Pontiac automobile, described by serial number, and a rebuilt motor installed therein on and prior to June 5, 1965. The defendants answered, denying the material allegations of the petition, and alleged that they obtained possession of the described automobile when the plaintiff delivered it for the purpose of installing a motor in place of the one already in the automobile. The answer further alleged that the plaintiff refused to pay the agreed price for the installation of the motor and that the defendants therefore removed it from the automobile; that the plaintiff did not own title to the motor and was not entitled to possession; that the defendants never refused to deliver the automobile or the original motor to the plaintiff and made no claim for it; that the defendants delivered the automobile and the original motor to the levying officer and disclaimed any title or right of possession thereto. The answer also contained a cross action which the defendants later withdrew.
The defendants filed a motion for summary judgment on the ground that there was no genuine issue as to the material facts. In support thereof was an affidavit by D.C. Padgett, one of the individual defendants, which stated as follows: that the plaintiff purchased the 1964 Pontiac from the defendant corporation; that the motor was badly damaged through no fault of the defendants; that the plaintiff contracted with the defendants to remove the damaged engine and replace it with a rebuilt engine owned by the defendants; that when the defendants had completed the installation of the rebuilt engine the plaintiff refused to pay the agreed price; that the defendants then removed the engine from the car. It was also set out in the affidavit that when the action in trover was served on the defendants they delivered the car and the original motor to the levying officer and disclaimed any title or right of possession thereto; that the defendants own title and have a right to possession of the rebuilt engine.
In response to the motion for summary judgment the plaintiff filed a counter affidavit which set forth the following facts: the automobile which the plaintiff purchased from the defendants contained a defective engine which was unknown to the plaintiff; the plaintiff delivered the automobile to the defendants for the removal of the defects in accordance with the express and implied warranties of the defendants; the plaintiff demanded the defendants make good such warranties or return the purchase price of the automobile to him; as a result thereof, negotiations were had for replacement of the motor; on May 14, 1965, the defendants agreed to repair the automobile by installing another motor, which installation was completed on or about June 5, 1965. At this time the plaintiff requested the return of his automobile which was refused by an agent of the defendant corporation. Subsequent to the demand for return by the plaintiff, the defendants removed from the automobile the rebuilt motor, battery, alternator and other parts of the automobile, which parts were well known to the defendants but unknown to the plaintiff; that on June 11, 1965, a deputy sheriff levied upon the automobile and delivered the possession of the automobile body together with the transmission and miscellaneous parts of the old motor but without the battery, alternator or the motor for which bond was given by the defendants and without other described parts. The defendants disclaimed title to the remaining portions of the disassembled automobile and delivered possession without the battery, alternator or other parts, and the levying officer obtained possession of the remaining portions of the automobile without the missing parts. The affiant further stated that he was the owner of and entitled to possession of the motor and all parts removed from the automobile.
The trial judge, after consideration of the pleadings, the affidavit and the counter affidavit, found there was no genuine issue as to any material fact and the defendants were entitled to a judgment as a matter of law. He therefore entered judgment in favor of the defendants and against the plaintiff for the new motor. From this adverse judgment the plaintiff appeals to this court.
This case does not involve the partial grant of summary judgment as to certain issues under former Code Ann. Ch. 110-12 (Ga. L. 1959, p. 234), now Code Ann. § 81A-156 (Ga. L. 1966, pp. 609, 660; Ga. L. 1967, pp. 226, 238). Thus, the rule is applicable: "In order for evidence presented on a motion to demand that a summary judgment be granted, it must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." International Brotherhood v. Newman, 116 Ga. App. 590, 592 ( 158 S.E.2d 298). An action for trover lies where there is an unauthorized assumption and exercise of the right of ownership over personal property belonging to another in hostility to his rights — an act of dominion over the personal property of another inconsistent with his rights, or an unauthorized appropriation. Wood v. Frank Graham Co., 91 Ga. App. 621, 622 ( 86 S.E.2d 691).
There is no question that where one is delivered possession of an automobile for the purpose of making repairs and holds the vehicle in assertion of his special lien for making such repairs (under Code Ann. § 67-2003 (Ga. L. 1953, Nov. Sess., p. 275; Ga. L. 1960, pp. 912, 913), his refusal to deliver the automobile upon demand does not constitute a conversion. Truscott v. Garner, 92 Ga. App. 95 ( 88 S.E.2d 197); Buice v. Campbell, 99 Ga. App. 334, 336 ( 108 S.E.2d 339).
However, in the instant case, the counter affidavit of the plaintiff reveals that on demand the defendants did not return the battery, alternator or certain other parts of the vehicle. Thus, although the defendant's affidavit disavows a claim to any portion of the automobile other than the installed engine, due to this conflict in the evidence, an issue of fact is presented as to whether there was an unauthorized appropriation by the defendants of these items. While the plaintiff's affidavit in this regard is not altogether clear and devoid of ambiguity, on summary judgment the burden is upon the moving party, and the party opposing the motion is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1, 4-5 (126) S.E.2d 442). Hence, there is an issue, at least, as to a portion of that claimed by the plaintiff, and the trial judge erred in granting the defendant's motion for summary judgment.
Judgment reversed. Bell, P. J., and Hall, J., concur.