Opinion
12703
July 16, 1929.
Before FEATHERSTONE, J., Laurens, May, 1928. Affirmed.
Action by Rebecca Manley against W.J. Bailey. Judgment for plaintiff, and defendant appeals.
Following are the order of the Circuit Judge refusing a new trial and defendant's exceptions:
ORDER REFUSING NEW TRIAL"This action was one for damages, actual and punitive, for the alleged taking and detention of property of the plaintiff by this defendant, and was tried before me and a jury at the May term of Court of Common Pleas for Laurens County. It resulted in a verdict in favor of the plaintiff for the possession of the goods described in the complaint, and in the event possession thereof could not be had, then for their value in the sum of Two Hundred ($200.00) Dollars, and for the further sum of Three Hundred ($300.00) Dollars as punitive damages for the taking and detention thereof.
"The defendant moved for a new trial on the minutes of the Court. First, on the ground that the verdict for the possession of the property or its value of Two Hundred ($200.00) Dollars was unsupported by the testimony. There was testimony that the property belonged to the plaintiff, and there was testimony that it was worth in excess of the amount found by the jury. The credibility of the witnesses and the value of the property as found by the jury was amply supported by the testimony.
"The second ground for a motion is that there was no testimony to support the verdict for punitive damages. There was testimony to the effect that the defendant had purchased a chattel mortgage executed by one, Hose Gowan, a son-in-law of the plaintiff. That prior to the purchase of this mortgage by the defendant, litigation had arisen over the ownership of the property described in the mortgage, and it had been adjudged that a portion of the property therein described was not the property of Hose Gowan, but was the property of his wife, the daughter of the plaintiff. That shortly after the purchase of this mortgage by the defendant, he caused the same to be placed in the hands of a Mr. Holland for seizure of the goods for sale under the terms of the mortgage. That Mr. Holland sent his trucks to the home of Hose Gowan, and while removing the goods was notified by Sam D. McBee that part of the goods belonged to the plaintiff, Mrs. Manley. Mr. McBee testifies as follows: `Mr. Holland's drayman was there. As I started to say, I asked if they had checked the stuff, I meant if they had checked with what the mortgage called for. They had not. I said, "Do you know you are carrying away Mrs. Manley's stuff?" They didn't care or words to that effect. They went on with it.'
"He further testified by asking them what they were doing. Some kind of exclamation with an oath: `We are cleaning it out.'
"He testified further that subsequently Mr. Bailey had him in the office and accused him of being the foundation of the law suit, and that as a result of the conversation he had to move from the mill.
"He also testifies that he was present during a conversation between Mr. Gilliam, a son-in-law of the plaintiff, and Mr. Holland, the agent of the defendant, in which Mr. Gilliam asked Mr. Holland for Mrs. Manley's clothes, and that Mr. Holland referred him to Mr. Bailey or the magistrate or one of the two. This evidence tends to impress notice on the defendant through his agents that at the time of the taking of the property it was claimed by the plaintiff, and the conduct of those taking the property for the defendant tended to show that they were determined to take the same no matter to whom it might belong. It appears from the testimony that at the time of the taking of the property, the plaintiff was visiting her son-in-law, Mr. Gilliam, at Greenwood.
"Mr. Gilliam testifies that during the week in which the property was taken, he went to Clinton at the instance of the plaintiff, who was sick, to see about her things. He testified that he went to see Mr. Holland and asked him about them, and was directed to see Mr. Bailey, that he tried to see him that day, but could not, and came back on Monday following and went to the bank and waited till Mr. Bailey came in. That he then asked Mr. Bailey about Mrs. Manley's trunk and clothes, and was informed by Mr. Bailey that he had turned it over to Mr. Richbourg to sell. He testifies: I said, `You are not going to sell her trunk and clothes?' He said I didn't have anything to do with it. The witness then testified that he went to see Mr. Richbourg and ascertained that the mortgage did not cover the plaintiff's property, and that he went back to see Mr. Bailey again, and asked him for Mrs. Manley's things. That Mr. Bailey said again that he had turned them over to Mr. Richbourg to sell. This witness, in response to the question: `What things did you ask for?' replied, `I asked for practically all of them. The main thing I wanted was her trunk and clothes, because she didn't have any clothes, didn't have a change.' He also testifies that he demanded the property of Mr. Holland one time, which was on Saturday after it was taken on Wednesday. On cross-examination he says: I went to Mr. Holland. I said: `Mr. Holland, I want to get Mrs. Manley's clothes and trunk.' He said: `I ain't got anything to do with it, you will have to see Mr. Bailey, I am acting as Mr. Bailey's agent.' He further testifies, on cross-examination: `I went to Mr. Bailey and asked for the goods. He told me that he had turned them over to Mr. Richbourg to sell.' I said: `You are not going to sell her clothes and trunk.' He said: `You haven't got anything to do with it.' `I asked him for them and he wouldn't give them to me. I told him who I was. I told him I was Mrs. Manley's son-in-law and that she had sent me for her clothes. I told him I came after Mrs. Manley's things. He knew what they were; he had the papers. He said I didn't have anything to do with it.' This testimony, if believed by the jury, and they are the sole judges of the facts, would show that Mr. Bailey had notice at the time of the taking of the goods that they belonged to Mrs. Manley, and during the time of detention of the goods that they belonged to Mrs. Manley, and that the goods taken included her wearing apparel, pictures and other property not included under the general terms of household goods and that in the face of her demand through those upon whom she might naturally rely to look after her interest, the continued detention of the goods by the defendant was willful and intentional, and was of such a character as would warrant punitive damages.
"The testimony further shows that when Mrs. Manley herself went to see him with her attorney before this action was commenced that Mr. Bailey declined to discuss the matter with them and practically ordered them from the office. It seems that an action had been formerly instituted against the Clinton Cotton Mills by this plaintiff for the possession of the same goods and that upon appearing that the mill had nothing to do with it but that the goods were detained by the defendant herein that action was discontinued, and the visit by Mrs. Manley and her attorney to see Mr. Bailey was prior to the commencement of the present action. I think there was ample testimony before the jury to warrant the submission to it of the question of punitive damages and that the verdict is sustained by the testimony.
"A further ground is made that Mrs. Manley was estopped from claiming the property. It was claimed that before the defendant purchased the mortgage that he sent Mr. Holland to the house of Hose Gowan to ascertain if the property was of sufficient value to warrant him in buying the mortgage, and that Mr. Holland was shown the property by Mrs. Hose Gowan, the plaintiff's daughter; and that Mrs. Manley was present and remained silent. There was testimony that at this time the property of the plaintiff was at Laurens in the home of another son-in-law. There was also testimony on the part of the plaintiff that Mr. Holland did not come to the house to look at the property. This made a clear issue of fact for submission to the jury and the question of estoppel was fairly submitted to it and it found by its verdict that the plaintiff was not estopped and, therefore, I cannot sustain this ground.
"A further ground is made that in my charge I unduly influenced the minds of the jury as to punitive damages by forceful and drastic illustrations of the rule of law and the duties of jurors in finding punitive damages in civil actions. The charge and illustrations used were those commonly used by me in charges on similar cases and in accordance with my understanding of the well-established rules of law governing the award of punitive damages in civil actions. I cannot conceive by the amount of the verdict rendered that the jury was unduly influenced by my charge as the verdict appears to be a very modest one.
"If I had been on the jury I probably would not have found any punitive damages, but the issue was squarely and I think properly submitted to the jury and I do not think I ought to interfere with their finding. I have given the motion my careful consideration, having before me a transcript of practically all of the testimony. The motion for a new trial is refused."
EXCEPTIONS"The defendant-appellant now appeals to the Supreme Court of the State of South Carolina and asks that the judgment be reversed upon the following grounds and for the following reasons:
"I. It was error for the presiding Judge to refuse to direct a verdict in favor of the defendant as to punitive damages on the motion made therefor by the defendant, the error being,
"(a) There was no testimony in the case upon which a verdict for punitive damages could properly be predicated.
"(d) The testimony shows beyond all question that the defendant was undertaking to enforce what he conceived to be his legal rights by the foreclosure of his mortgage and no notice was given to him by the plaintiff, or by any person authorized to act for him, of her claim to any part of the property seized under the mortgage in question until after the seizure and the sale of the property under the mortgage.
"II. It was error to charge the jury as follows:
"`If the plaintiff has shown you that she had title to the property, and that the defendant, Mr. Bailey, took the property and disposed of it, then she is entitled to recover the property or its value, and entitled to recover in addition such damages as she may have sustained by reason of the illegal taking and the keeping of the property. Has she satisfied you by the greater weight of the evidence that she was the owner of the property described in the complaint? If she has, then she is entitled to recover a verdict at your hands for the property described in the complaint, or for any part of the property described in the complaint of which she has shown you by the greater weight of the evidence that she was the owner.'
"The error being,
"(a) This instruction was equivalent to the direction of a verdict for the plaintiff upon proof of her title regardless of whether she had represented the property as belonging to her daughter, Mrs. Gowan, or whether it was covered by the mortgage to which mortgage plaintiff had consented.
"(b) The charge as to estoppel did not inform the jury that such charge was to qualify the direction of a verdict upon proof of title for the direction as given was absolute and final upon proof of title and thereby practically deprived the defendant of his defense as set forth in his answer.
"III. It was error to charge the jury as follows:
"`Something has been said on the question as to where that property is sold. As I view this case, it not being an action by the mortgagor, but this being an action by Mrs. Manley to recover possession of personal property, that question as to where the property is sold may be considered by the jury on the general question as to the motive for the taking, but it doesn't necessarily mean anything else in this case. If the mortgagor were here complaining, then he would have a right to demand that that property be sold at Inman where the mortgage provides for a sale. The mortgagor is not here complaining, the plaintiff is here claiming this particular property that was taken as hers. You may consider that on the general issue in the case as to the motive of the taking and all that kind of thing, but that wouldn't necessarily make the sale illegal.'
"The error being,
"(a) In telling the jury `where the property is sold may be considered by the jury on the general question as to the motive for the taking,' the presiding Judge charged on the facts in violation of the constitution by indicating to the jury what weight might be given testimony showing that the property was sold in Laurens County instead of Spartanburg County.
"(b) In telling the jury `You may consider that on the general issue in the case as to the motive of the taking and all that kind of thing.' The presiding Judge charged on the facts in violation of the constitution by indicating to the jury what weight might be given that testimony and telling them what inferences might be drawn therefrom.
"(c) A sale in Laurens County where property was situate and where the parties were supposed to live would not support the inference of bad `motive of the taking and all that kind of thing' so far as plaintiff was concerned, and, therefore, the charge in effect told the jury that it might draw an inference favorable to the plaintiff and very unfavorable to the defendant from a matter about which the plaintiff was not concerned at all.
"(d) The law did not require the sale of the property covered by the mortgage to be made in Spartanburg County so far as plaintiff was concerned and, therefore, no inference as to `motive of taking and all that kind of thing' should have been allowed from the fact that property was sold in Laurens County.
"IV. It was error to charge the jury as follows:
"`You get the value from the evidence. "And we find for the plaintiff blank dollars actual damages and blank dollars punitive damages" for the taking and detention of the property. If you find that no punitive damages ought to be awarded under the instructions I have given you, then you leave that out, say, "We find so many dollars actual damages" and leave out the punitive damages. If you find for the defendant, you adopt form No. Two, which is "We find for the defendant."
"`Mr. Babb: We allege a willful detention as well as a willful taking. Even though the original taking might have been legal, if the detention —
"`The Court: I charge you that refers to willful taking and detention.'
"The error being,
"(a) There was no testimony to support a verdict for willful detention for the undisputed testimony shows that no demand was made upon defendant, or his agent, by the plaintiff, or by anyone authorized to act for her, until long after the seizure and sale of the property under the mortgage.
"(b) There was no demand upon the defendant, or his agent, by the plaintiff or by anyone authorized to act for her, after the sale in which it was disclosed what part of the personal property sued for was claimed by the plaintiff except a trunk in which the plaintiff claimed her clothes were packed, and some pictures, and the charge allowed and the verdict fixed damages for the willful detention of all the personal property described in the complaint, most of which had never been claimed until suit was brought.
"V. The verdict was contrary to the provisions of the statute in that behalf and it is error to refuse to set it aside upon motion for a new trial made in that behalf, the error being,
"(a) The verdict should have specified the particular articles and the value of each article.
"(b) The verdict is too general in that it specifies `the possession of the property or the value of $200.00' without disclosing what property, while the undisputed testimony shows that part of the property was covered by the mortgage.
"(c) The verdict as to punitive damages fails to disclose whether it was for the willful taking or the willful detention of the property, or whether it was just generally.
"VI. It was error in the presiding Judge to refuse defendant's motion for a new trial made upon the minutes of the Court, the error being,
"(a) The undisputed testimony shows that the defendant was simply undertaking to enforce what he conceived to be his legal rights and there was no testimony upon which punitive damages could have been predicated.
"(b) The testimony shows that no demand of any kind was ever made by the plaintiff on the defendant for the possession of any part of said property, except the trunk in which she claims clothes were stored and some pictures and the verdict embracing the balance of the personal property was not supported by the facts since no demand has been made therefor."
Messrs. Richey Richey, F.P. McGowan, and Grier, Park McDonald, for appellant, cite: As to punitive damages: 69 S.C. 444; 81 S.C. 143; 93 S.C. 125. Breach of mortgage condition: 105 S.C. 140; 120 S.C. 74; 72 S.C. 464; 18 S.C. 179; 91 S.C. 439. Messrs. Blackwell, Sullivan Wilson, and Simpson, Cooper Babb, for respondent.
July 16, 1929. The opinion of the Court was delivered by
A trial of the issues in this case was had before Judge Featherstone and a jury at Laurens at the May term, 1928, of Court of Common Pleas. The jury rendered the following verdict: "We find for the plaintiff the possession of the property or the value of $200.00 and we find for plaintiff $300.00 punitive damages. L.P. Martin, Foreman, May 24, 1928." The exceptions raise three material issues.
1. The defendant excepts to the ruling of the Circuit Judge in refusing to direct a verdict as to punitive damages. Punitive damages in an action of this character can only be allowed for the willful taking or willful holding of the personal property of another. If there is any testimony to go the jury upon which a reasonable verdict can be based on either or both of these questions, it is the province of the jury to decide this issue. A reading of the record discloses that the defendant had ample notice of the plaintiff's claim to the personal property in question, and that the defendant willfully refused to surrender the said property. This testimony is fully discussed in the order of the Circuit Judge refusing a new trial and was sufficient, if the jury believed it, to sustain punitive damages. Section 600, Vol. 1, Code of 1922.
The defendant seized the property of plaintiff and held it, and there was evidence that his action in so doing was in willful violation of the rights of the plaintiff. The jury having resolved this issue in plaintiff's favor, this Court will not disturb it.
2. Error is also alleged in several respects as to the charge of the Circuit Judge. We think that the charge of the Judge was on the whole correct and that the same stated a correct guide from which the jury was able to reach a proper verdict. If the plaintiff proved her title to the personal property in question and that the defendant took said property and disposed of it, plaintiff would be entitled to recover the property or its value, and in addition such actual damages as she might have suffered by reason of the taking and withholding of the same.
The defendant complains that the doctrine of estoppel was not sufficiently explained to the jury. If the defendant desired any fuller instructions than were given by the Circuit Judge, he should have requested the same as required by law.
The defendant also complains of the charge of the Circuit Judge with reference to place of the sale of the property. The charge of the Circuit Judge was proper in this respect, and in any event this could not have affected the result of the case. The defendant complains also that the Circuit Judge erred in charging the jury that they could find a verdict for willful detention as well as willful taking. If there was a willful taking of necessity there was a willful detention. If there was neither willful taking nor willful detention, it was the duty of the Circuit Judge to direct a verdict. As stated above in the grounds for refusal to direct a verdict, there was sufficient evidence to go to the jury on these questions and there was no error in the charge of the Circuit Judge.
3. The defendant complains of the form of the verdict. A complete discussion of this matter is had by Mr. Justice Cothran in the case of Wilkins v. Willimon, 128 S.C. 509, 122 S.E., 503, where the various forms of verdict in actions of this character are discussed. Under the classification of Judge Cothran, the verdict in question is found under condition 2 which he states in correct form in the opinion at page 514 ( 122 S.E., 503). The verdict in this case was for the possession of the property or the value of $200, which sufficiently conforms to the law. Under the authority of the above case and Bardin v. Drafts, 10 S.C. 493, the form of the verdict is sufficient.
All exceptions are overruled, and the judgment of the Circuit Court is affirmed.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER and CARTER concur.
MR. CHIEF JUSTICE WATTS did not participate.