Hayes v. FIDELITY ACCEPTANCE CORPORATION

147 Ga. App. 144 (1978)

248 S.E.2d 209

HAYES et al. v. FIDELITY ACCEPTANCE CORPORATION.

55672.

Court of Appeals of Georgia.

Argued April 3, 1978.

Decided September 11, 1978.

Joseph H. King, Jr., for appellants.

Lucian Lamar Sneed, for appellee.

BANKE, Judge.

The plaintiffs below, Rose Marie and Joe Hayes, appeal the grant of a directed verdict to the defendant, Fidelity Acceptance Corporation, in their action for wrongful repossession of an automobile. The evidence at trial consisted of the testimony of the plaintiffs to the effect that the defendant had agreed to accept certain late *145 payments on the car but that it subsequently accelerated the loan and repossessed the vehicle in violation of this agreement. There was also evidence from which it could be inferred that the defendant had accepted late payments in the past.

The automobile belonged to Rose Marie Hayes. Her husband, Joe Hayes, alleged that he had certain personal property inside the trunk of the car which the defendant refused to return to him unless the balance of the indebtedness were paid.

The defendant did not offer any evidence at trial, nor has it submitted a brief on appeal. Held:

1. It was error to grant the directed verdict. The jury would have been authorized to find for Rose Marie Hayes either upon a finding that the defendant violated an agreement to accept the late payments or upon a finding that the defendant had established a practice of accepting late payments in the past and then declared a default without granting "reasonable notice" of its intention to rely on the strict terms of the contract. See Code § 20-116; Curl v. Federal Savings &c. Assn., 241 Ga. 29 (244 SE2d 812) (1978). The jury would have been authorized to return a verdict for her husband upon a finding that the defendant had wrongfully refused to return his personal property to him, regardless of whether or not the repossession was wrongful.

2. The trial judge acted within his discretion in refusing to admit into evidence certain photographs of the automobile which he determined to be irrelevant to any issue in the case.

Judgment reversed. Deen, P. J., and Smith, J., concur.