Fagan v. Timmons
|27 June 1949
|FAGAN v. TIMMONS.
|South Carolina Supreme Court
As Corrected on Denial of Rehearing July 29, 1949.
Harold C. Seigler, Columbia, for appellant.
John S. Nicholson, Columbia, Nelson, Mullins & Grier, Columbia, for respondent.
The appellant states the 'Question Involved' to be 'Is there sufficient real, material, pertinent and relevant evidence to support the judgment of the lower Court?'
It is alleged that the trial Judge erred in overruling the motion of the appellant for a non-suit for that the respondent wholly failed to produce any evidence to prove that the trespass complained of was committed by her; and further that the trial Judge erred in overruling the motions for a direction of verdict in her behalf, and for judgment non obstante veredicto for that the only reasonable inference to be drawn from all of the testimony is that the alleged trespass was committed not by the appellant, but by another party.
We need, of course, discuss only whether the trial Judge erred in refusing to grant the motion of the appellant for a direction of verdict in her behalf.
On December 17, 1945, in contemplation of getting married, the respondent leased and rented from the appellant a furnished apartment, the same being apartment 5-B in an apartment house situate at 3104 Monroe St., Columbia, S. C., paying to the appellant in advance the sum of One hundred and thirty ($130.00) Dollars as rental covering the period of eight weeks, or ending on February 10, 1946. He was also required to leave with appellant the sum of $4.00 as key deposit for the key to the apartment. The apartment consisted of one room in which it was necessary to eat, sleep and live, a kitchen and a bath, and was called an 'efficiency apartment.' The respondent was required to pay the rental in cash, a check for $120.00 thereof being refused for the then stated reason that the appellant did not have time to go have the check cashed. Nothing was said to indicate that the respondent was not renting a furnished apartment, or that the appellant did not own the furniture in the apartment. The receipt for the rent which the appellant gave to the respondent did not specify the amount paid.
The respondent became suspicious as to the appellant's failure to stipulate in the receipt the amount of rent paid and went to the Office of Price Administration to inquire what the rent for this particular apartment should be. There he learned that the rental ceiling of this apartment was $50.00 per month as a furnished apartment, and on an unfurnished basis, $30.00 per month. (This was testified to by the employee in charge of the O.P.A. office in Columbia.) As a result of instructions received from the O. P. A. the respondent requested a second receipt from the appellant, representing that he had lost the first receipt, but the amount of the rental paid did not appear on the duplicate receipt which the appellant gave to him. As a result of further instructions from O.P.A., respondent then entered suit against the appellant for the overpayment of rent and penalty, which case was settled by the appellant here paying some amount.
On February 9, 1946, and by reason of instructions from the O.P.A., the respondent tendered to the appellant $50.00 for the next month's rent, and while she wouldn't accept the money she kept saying, 'I am not refusing the rent.' The same day the respondent and his wife when leaving the apartment, thoughtlessly or carelessly left the key thereto in the apartment, and when they closed the door they automatically locked themselves out. The appellant resided in the same apartment house, so the respondent asked her if she would use her pass-key to let them back into their apartment. This she refused to do on that day, but informed him that she would do so on the next day, 'because that's when you are up.' (Incidentally the respondent, with the aid of another party who had an apartment in this apartment house, gained entrance to his apartment through a window opening on a porch.)
Nothing occurred in reference to the occupancy of this apartment by the respondent and his wife on the 10th of February, but a a couple of days later, the appellant came to the apartment and informed the respondent (and his wife) after the opening remark, 'Are you still here,' that she was checking on the furniture. She merely stepped inside and surveyed the premises because she could see all of the furniture from where she was standing....
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Fagan v. Timmons
...sec. 746 et seq., supplementary to an unsatisfied execution upon judgment for $750 damages recovered for wilful tort. Fagan v. Timmons, 215 S.C. 116, 54 S.E.2d 536, certiorari denied, Timmons v. Fagan, 338 U.S. 70 S.Ct. 306, rehearing refused, 70 S.Ct. 1018. After return of execution nulla ......