Cannon v. Cox

• Decision Date: 16 July 1914
• Docket Number: 8879.
• Citation: 82 S.E. 399,98 S.C. 185
• Parties: CANNON v. COX.
• Court: South Carolina Supreme Court

82 S.E. 399

98 S.C. 185

CANNON v. COX.

No. 8879.

Supreme Court of South Carolina

July 16, 1914

Appeal from Common Pleas Circuit Court of Florence County; H. F Rice, Judge.

Action by Francis Cannon against G. O. Cox. From a judgment for plaintiff, defendant appeals. Affirmed.

Willcox & Willcox, of Florence, for appellant.

Gasque & Page, of Florence, for respondent.

GARY C.J.

This is an action under section 3520, volume 1, Code of Laws 1912, to recover actual and punitive damages on account of an alleged unreasonable and excessive distress for rent, made by the defendant on the goods of the plaintiff. The jury rendered a verdict in favor of the plaintiff for $250, and the defendant appealed.

The first exception is as follows:

" His Honor erred, it is respectfully submitted, in refusing to grant defendant's motion for a nonsuit, on the cause of action based on willfulness, made at the close of plaintiff's case, for the reasons stated in the ground for such motion, which was as follows: 'There is absolutely no proof of any willful or wanton conduct on the part of the defendant.' "

The amount, for which the defendant distrained, was $17, and the description of the property distrained is as follows: One oak bedstead, one spring and mattress, one single bedstead with mattress and spring, one bureau, one wash stand, one trunk one table, two rockers, four chairs, one lamp, one stove and utensils, and one wardrobe or sideboard.

The plaintiff thus testified as to the value of said property:

"Q. What were the goods worth, the actual worth, not what they were worth to you, but what were they worth? A. They were worth, at least estimation, $300. Q. Were they worth $100? A. Yes, sir. Q. It says one oak bedstead; what kind of a bedstead was that? A. Heavy rolled foot bed, high head. Q. One spring and mattress, that belonged to that bed? A. Yes, sir. Q. One bureau; what kind of a bureau was that? A. I guess about 32 by 33 inches. Q. It belonged to the same set? A. Yes, sir. Q. One wash stand? A. I guess 22 by 30 inches. Q. Belonged to the same set? A. Yes, sir. Q. Single bed, mattress and spring; what kind was that? A. Plain bed. Q. Oak bed? A. Yes, sir. Q. One trunk, what kind of a trunk was it? A. Ordinary trunk. Q. One table, what kind of a table was it? A. Round table. Q. Oak table? A. Yes, sir. Q. Two rockers? A. Oak. Q. Two oak rockers? A. Yes, sir. Q. What were they worth, actually worth? A. $3 each Q. Four straight chairs? A. Oak chairs. Q. Split seat or cane seat? A. Cane seat. Q. One lamp; what was that lamp worth? A. $1. Q. One safe and utensils? A. $15. Q. One wardrobe or sideboard? A. Sideboard. Q. What was it worth? A. $12."

The plaintiff also testified as follows, in regard to the amount of the rent that was due, when the distress was made:

"Q. Now, Cannon, at the time this distress warrant was issued, the records show that the distress was for $17; did you or not owe him $17 at that time. A. I did not. Q. What did you owe him? A. $6.15. Q. Did you or not offer to pay the defendant any amount you might owe him, if he would go with you to your attorney and check up your receipts? A. Yes, sir I would settle according to his accounts, and otherwise I wouldn't, because he could beat me in figuring, and I wouldn't trust a receipt in his hand."

After the property was distrained, the plaintiff brought an action in claim and delivery and the defendant thus testified as to what took place upon the trial of that case:

"Q. At that time he produced certain receipts which you didn't have a record of, and those were credited on the account? A. Yes, sir. Q. State whether or not that reduced the amount to $6.15? A. Yes, sir."

There was testimony contradicting the plaintiff, both as to the value of the property, and as to what took place between him and the defendant, in regard to the amount due.

If the jury believed the testimony of the plaintiff, it was sufficient to show a reckless disregard of his rights by the defendant.

This exception is overruled.

Second exception:

"His honor erred, it is respectfully submitted, in refusing to direct a verdict in favor of the defendant, upon the grounds stated in support of said motion, which were as follows: 'There is no proof of wanton or willful conduct on the part of the defendant. There never was any distress for rent, upon which to base the cause of action, and there cannot be any cause of action, based on an illegal distress.' "

The first ground has already been disposed of, and we proceed to the consideration of the second.

One of the allegations of the plaintiff's complaint, in the action for claim and delivery hereinbefore mentioned, was that the defendant had distrained for more rent than was due him. After taking possession of the property under a distress warrant, and requiring the plaintiff to resort to an action in claim and delivery, to recover possession of his property, the defendant is estopped from interposing the objection that his action was illegal.

If the levy was unreasonable and excessive, the defendant was a trespasser ab initio. Lander v. Ware, 1 Strob. 15.

This exception is overruled.

Third exception:

"His honor erred, it is respectfully submitted, in giving the jury this charge: 'If a man sets up a claim for a good deal more rent than he knows is owing him, and levies a distress warrant for this rent he is liable not only for actual damages, but for punitive damages also; because he knows he is doing wrong. But if a man is honest in his belief that the tenant owes him this money, and unless he has been grossly negligent, in keeping his accounts with the tenant, so much so that the law would impute willfulness, on account of that gross negligence, then, if he claims more than is due him, there is no willfulness in the case, and there can be no punitive damages. It is for the jury to say whether or not in any particular case, where a man makes a claim for more than is due him, and makes a distress for more than is due him, whether he ought to have known that he was claiming more than was due him. Or the jury can say whether he was grossly negligent and claims more than was due him, and makes a levy on the goods and chattels of his tenant, then

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