39 S.C. 465 | S.C. | 1893
The opinion of the court was delivered by
This is an action of “claim and delivery” for certain articles of personal property. It seems that F. C. Perry was a retail liquor dealer in Abbeville; that he failed, having in his store the following articles, viz: two barrels of rye whiskey and two cases of fine brandy, worth in the aggregate $223.60; that these articles had been seized by the defendant Mann as sheriff, in behalf of one claiming to be a mortgage creditor of Perry, and that the articles were covered by his mortgage.
The plaintiffs are liquor dealers of Cincinnati, Ohio, and the complaint alleged that the aforesaid articles, although in Perry’s store at Abbeville, were not his property, but had been “con
During the progress of the trial, J. S. Loeb, one of the plaiutiffs, was allowed to testify that he was the traveling member of the plaiutiffs’ firm, and that in that capacity made his regular rounds about five times in the year, and he came to Abbe-ville to collect a debt; that he was shown the barrels and cases of' liquor in the custody of the defendant, and upon demand and refusal to deliver the articles, he instituted the action, gave bond, and having the goods delivered to him, he shipped them off upon the Richmond and Danville Railroad. Among other things, he was allowed (over objection) to state what damages he had sustained by reason of the taking of the goods by the sheriff, the expenses he had incurred, such as railroad expenses and all that. (Objection of defendant overruled.) Witness proceeded: “Well, in all I have lost, ten days’ time. I have made one trip, besides the one here. When I came here for the goods, I came from Charleston, and returned just as I am doing now, and my time, at the least calculation, is worth $5 a day, and railroad fare $33 for the second trip; hotel bills $23, and my attorneys’ fee is ten per cent, on the amount recovered, $22, aggregating $129.93. (Objection noted by request.”)
There was no evidence that the property itself had been damaged or even opened, or that the short delay had reduced the price. The verdict was for the plaintiffs (already in possession of the property), and fifty dollars damages. The defendant appeals upon several grounds; but, from the view which the court takes, it will not be necessary to consider any of them except the second, which is as follows: “Because the Circuit Judge erred in allowing the plaintiff, over specific objections, to swear that he was damaged in the sum of $129.93, included in which amount was an itemized statement as to the plaintiffs’ alleged expenses, as follows: (1) ten days lost (computed), $5 per day; (2) railroad fare, $33; (3) hotel bills, $23; (4) attorneys’ fees, ten per cent, on amount recovered, $22.”
Section 326 of the Code provides that the prevailing party may have taxed and inserted in the judgment “the sum of the allowances for costs and disbursements, as prescribed by law, the necessary disbursements, including the fees of officers allowed by law, the fees of witnesses, the reasonable compensation of commissioners in taking depositions, the fees of referees, and the expense of-printing the papers for any hearing when required by a rule of the court. The disbursements shall be stated in detail and verified by affidavit,” &c. See sections 2425 and 2428 of the General Statutes. It would seem that in an ordinary case, where no special damage is asked for, this provision would limit the compensation allowed by law to the prevailing party, who had already the possession of his property.
But it is urged that this action of “claim and delivery” is peculiar in this, that the law expressly gives to the prevailing party damages in addition to costs and disbursements. It is true that section 283 of the Code provides as follows: “In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or if it have, and the defendant, by his answer claims a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the
“The expenses incurred by a plaintiff in consulting an attorney and in obtaining a legal opinion upon the validity of his claim, is not recoverable as a part of the damages. Parties must do what they think right, and the expense of getting the experience of attorneys to advise is not to be repaid by the other party. Nothing of that sort can be allowed in damages, and every thing of that nature that a plaintiff is entitled to, will be allowed in the taxation of costs.” 2 Add. Torts, 1188. See Welch v. Railroad, 12 Rich., 292; Hill v. Thomas, 19 S. C., 236; Oelrichs v. Spain, 15 Wall., 211; and Sedgwick on Damages, page 99. The case of Welch v. Railroad Company, from Richardson, was an action on the case to recover against the company damages for a lost trunk, and it was held that a lawyer's fees, which the plaintiff may be required to pay his counsel in the case, is not, in this State, to be allowed by the jury, in estimating the plaintiff’s damages. Judge O’Neall, in delivering the judgment of the court, said: “It cannot be said to be a necessary result of the act done by, or negligence of, the defendant. If this had been a case in which vindictive damage could be given, and the jury had found in gross beyond the value of the article lost, then, indeed, this verdict could not have been disturbed. Butin this case there is nothing that calls for such a verdict. It is, therefore, ordered, that a new trial be given, unless the plaintiff shall enter a remittitur,” &c. This seems to be precisely in point.
In the case of Oelrichs v. Spain, 15 Wallace, supra, it was held
We regard it as well settled in this State, both by decisions here and in the Supreme Court of the United States, that counsel fees are not allowable as part of the plaintiff’s damages, for the reason that they can not be said to be the necessary result of the act done by the defendant. It is true, that the decided cases do not seem to be as full and clear in reference to the other items of expenditures claimed here as damages; but we confess that in respect to damages, we are unable to draw a distinction in principle between expenses incurred in paying lawyers’ fees and in making a charge for the speculative loss of time and paying railroad and hotel bills, &c.