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Artman v. Ray
November 24, 1972
RAY ET AL, APPELLANTS
On respondent's petition for rehearing, filed October 6, 1972. Former opinion filed September 21, 1972, 95 Adv Sh 1043,
Plaintiff filed a petition for rehearing.
The plaintiff brought this action for conversion alleging defendants converted the plaintiff's truck by (1) having it towed into a garage and also (2) by refusing to return it to plaintiff unless he paid the tow and storage charges. The trial court found the initial pick up did not constitute a conversion; however, it submitted the second allegation to the jury who found it was a conversion and awarded punitive damages. We held that under the circumstances the withholding for payment of charges was not a conversion.
Plaintiff argued that the judgment should be sustained because the trial court erred in not submitting to the jury the question of whether the initial pick up of the car was a conversion. We held plaintiff was foreclosed from contesting this ruling of the trial court because even if such argument was correct the verdict could not be sustained upon this ground. Plaintiff in his petition contends we were in error in this regard, as well as others.
Our opinion may be misleading as regards the reasons for the ruling in this particular case. For this reason we will attempt clarification.
If the trial court erred in not submitting to the jury the issue of whether the first pick up was a conversion, the judgment nevertheless cannot be affirmed. The judgment was based upon a verdict that the subsequent withholding of the vehicle for the payment of charges was a conversion. The jury may or may not have found that the initial pick up was a conversion. The principal amount awarded by the jury was for punitive damages. Assuming the issue of punitive damages could be submitted to the jury on the initial pick up, the jury may or may not have awarded punitive damages.
If the plaintiff's argument is construed to be that the trial court erred in not holding as a matter of law that the initial pick up was a conversion, the alleged error will not permit an affirmance of the judgment. As above stated, the jury may well have decided the issue of punitive damages differently if the conversion were found to be the initial pick up. In addition, the plaintiff did not preserve this issue for appeal. He expressly refused at trial to move the court to rule as a matter of law that the initial pick up was a conversion.
Plaintiff is not entitled to a new trial because at no time on appeal did he even impliedly urge that he was entitled to a new trial if the judgment should be reversed.
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