72 S.E. 464 | S.C. | 1911
October 25, 1911. The opinion of the Court was delivered by Robert R. Sizer Company a corporation, brought this action of claim and delivery against B.H. Dopson and the Charleston and Western Carolina Railroad Company, and thereunder took from the railroad company a lot of lumber loaded on cars consigned by Dopson to A.R. Sykes and Jackson Lumber Company, Savannah, Ga. The railroad company, being a mere carrier in possession, has no interest in the cause. Dopson answered, denying the plaintiff's allegation of ownership, alleging the value of the lumber to be $300, and setting up a claim of $1,000 damages by reason of the plaintiff's having seized and withheld the property "carelessly, wilfully, recklessly and maliciously." On the trial the Circuit Court instructed the jury that there was no evidence warranting a verdict for punitive damages. The verdict was in favor of the defendant for the return of the property, or its value $300, and $500 damages. The Court refused a motion for a new trial made on the ground, as appears from the order of the Court, that the verdict was "excessive and unsupported by the evidence."
Error is assigned in the instruction given to the jury that the verdict must be in favor of the defendant Dopson if they found that the plaintiff had not demanded possession of the lumber before bringing the action. There was no demurrer to the complaint, and the correctness of the instruction depends upon the issue made by the evidence.
The defendant was the owner of a sawmill and was largely indebted to the plaintiff for advances for the purchase of timber and for other purposes. The evidence on *537
the part of the plaintiff tended to prove that the defendant had agreed that all the lumber manufactured by him except boards should be the property of the plaintiff corporation and consigned to it to be sold, and that the plaintiff should sell the lumber and apply the proceeds to the defendant's debt. The evidence on the part of the defendant was to the effect that there was no such agreement and that the plaintiff had no right to the possession of the lumber in dispute. The defendant repudiated the claim of the plaintiff by loading the lumber on cars and consigning and shipping it to other persons. If the plaintiff was the owner of the property at defendant's mill, the defendant's act in shipping it to other persons was a distinct conversion of it. The issue whether there had been a conversion of plaintiff's property by the defendant was thus clearly made by the evidence; and this issue could be decided only by the jury. It was error to disregard the conflict thus made by the testimony, and instruct the jury as a proposition of law that the plaintiff could not recover unless the jury found that it had demanded the possession from the defendant before bringing the action; for if defendant had converted the property of the plaintiff, demand for possession before action was not necessary. Jones v. Dugan, 1 McC. Law, 428; Harris v.Saunders, 2 Strob. Eq. 370; McPherson v. Neuffer, 11 Rich. L. 267; Ladson v. Mostowitz,
The answer was a sufficient basis for proof of both actual and punitive damages. On the subject of damages the jury were instructed: "I have not been able to discover any evidence here which would warrant you in finding punitive damages. So I am going to charge you in this case that you can only find actual damages, in case you find that he (the defendant) is entitled to damages. Such actual damages as he suffered from the taking and detention. That means such actual damages as he suffered, *538 as was reasonably consequent upon the taking and withholding of the property from the defendant's possession by Sizer Company. You can not go into remote and speculative elements of damages, such as what he might have lost by way of profits on the mill, but get down to exactly what he lost, as a reasonable consequence, as a proximate result, of the taking and withholding of the property." The plaintiff's contention is that under this charge there was no support in the evidence for a recovery of $500 damages, and that the refusal to grant a new trial on this ground was error of law.
In actions for conversion or for the taking and detention of personal property the general rule is that the measure of damages is the value of the property with interest thereon, and the jury may give the highest value up to the time of the trial, Rogers v. Randall, 2 Speer. 38; Gregg v. Bank ofColumbia,
The verdict of $500 was not supported by the evidence and was contrary to the charge of the presiding Judge, and for this reason the motion for a new trial should have been granted.
It is the judgment of this Court that the judgment of the Circuit Court be reversed and the cause be remanded to that Court for a new trial.