Cherry v. Singer Sewing Mach. Co.

• Decision Date: 04 May 1932
• Docket Number: 13401.
• Citation: 164 S.E. 126,165 S.C. 451
• Parties: CHERRY v. SINGER SEWING MACH. CO. et al.
• Court: South Carolina Supreme Court

164 S.E. 126

165 S.C. 451

CHERRY v. SINGER SEWING MACH. CO. et al.

No. 13401.

Supreme Court of South Carolina

May 4, 1932

Appeal from Common Pleas Circuit Court of Orangeburg County; B. H Moss, Judge.

Action by Lucile S. Cherry, individually and as administratrix of her husband, Fred Cherry, deceased, against the Singer Sewing Machine Company and another. From a judgment for plaintiff named defendant appeals.

Reversed and remanded.

Frierson & McCants, of Columbia, for appellant.

W. B Martin, of Orangeburg, for respondent.

BONHAM J.

Fred Cherry and Lucile S. Cherry, his wife, brought action in the county court of Orangeburg county demanding damages for the alleged unlawful seizure and conversion of a sewing machine, then in the possession of Lucile S. Cherry. After trial of the case Fred Cherry died. Lucile Cherry was appointed administratrix of his estate, and by proper order was, as such administratrix, substituted in his stead.

The action was brought against Singer Sewing Machine Company and S. L. Dantzler. The complaint alleged that on the 19th day of January, 1931, Lucile Cherry was in possession of the sewing machine therein described, upon which she owed to Singer Sewing Machine Company a balance of $16. That on that day the defendants acting jointly and concurrently and also severally, willfully, wantonly, maliciously, negligently, and in a high-handed and unlawful manner, entered plaintiff's home against their protest, took and carried away the sewing machine which they converted to their, or his, or its use. They asked for damages in the sum of $3,000. The answer of the defendants was a general denial. The case was heard by Judge Moss and a jury, and resulted in a verdict against Singer Sewing Machine Company alone for $644; $44 actual and $600 punitive damages.

Motions were made by defendants for directed verdict, and for new trial, which were denied. This appeal followed.

Numerous questions are made by the appeal touching upon conversion, title to chattels after condition broken, the form and nature of the verdict, and other things. As the case must go back for trial, we deem it best to consider and discuss only that issue upon which we hold that the judgment below must be reversed.

That issue is made by exception IV, which alleges error on the part of the presiding judge in refusing to grant the motion for new trial because the verdict is against the master, Singer Sewing Machine Company alone, while the servant whose conduct is alleged to have given ground for action is held blameless of any wrongdoing. The proof shows that Dantzler as the agent of Singer Sewing Machine Company seized the machine.

This exception is sustained. The defendant corporation could only act through its agent. If the agent did nothing which subjected him to liability while acting in and about the corporation's business, it is illogical to hold the master in damages, either actual or punitive, for the conduct of the agent. In this case the jury exonerated the agent but held the principal guilty of negligence and willfulness and wantonness, although the principal did nothing except through the agency of its codefendant, Dantzler.

Such a verdict is contrary to the settled law of this state.

"Where a master and his servant are sued together for the same act of negligence or willful tort, and the master's liability rests solely on the servant's conduct, a verdict against the master alone is illogical and cannot stand." Weeks v. Carolina Power Co., 156 S.C. 158, 153 S.E. 119, 121. Citing Johnson v. Atlantic Coast Line R. R. Co., 142 S.C. 125, 140 S.E. 443, 445 and cases there cited.

Again from the Johnson Case, supra, this is taken: "At this time, we think it only necessary to say that, in so far as those cases are applicable to the main proposition we have before us at this time for determination, this one important principle runs through all of them, to wit: That, when the master and the servant are sued together for the same act of negligence or willful tort, and the master's liability rests solely upon the servant's conduct, a verdict against the master alone is illogical and cannot stand. This seems to us to be a reasonable and proper rule, for it is an inconsistent declaration on the part of the court to say that, while the servant is without blame in his conduct, yet, because of that same conduct, the master is to be held blamable." " It will not be necessary to consider any of the exceptions other than that portion of the 12th, which assigns error to the circuit judge in charging that the jury could find a verdict against the railway company alone. From his ability and learning it must be assumed that the circuit judge was familiar with the established rule in this state, that in an action against the master and servant jointly, based solely upon the negligence of the servant, a verdict against the master alone will not be allowed to stand." Durst v. So. Ry. Co., 130 S.C. 168, 125 S.E. 651, citing Sparks v. Railroad Co., 109 S.C. 145, 95 S.E. 344; Jones v. Southern Co., 106 S.C. 20, 90 S.E. 183; Sparks v. Railroad Co., ...