Galloway v. General Motors Acceptance Corporation, 4475.

• Decision Date: 28 August 1939
• Docket Number: No. 4475.,4475.
• Citation: 106 F.2d 466
• Parties: GALLOWAY v. GENERAL MOTORS ACCEPTANCE CORPORATION.
• Court: U.S. Court of Appeals — Fourth Circuit

106 F.2d 466 (1939)

GALLOWAY v. GENERAL MOTORS ACCEPTANCE CORPORATION.

No. 4475.

Circuit Court of Appeals, Fourth Circuit.

August 28, 1939.

L. D. Jennings and M. W. Seabrook, both of Sumter, S. C., for appellant.

A. L. Hardee, of Florence, S. C. (Willcox, Hardee & Wallace, of Florence, S. C., on the brief), for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and HENRY H. WATKINS, District Judge.

HENRY H. WATKINS, District Judge.

This action originated in the Court of Common Pleas for Florence County, South Carolina, and by appropriate proceedings was removed to the United States District Court for the Eastern District of South Carolina. Plaintiff sought recovery of both actual and punitive damages against General Motors Acceptance Corporation and one Cary White, because of the alleged unlawful seizure and detention of plaintiff's automobile and the alleged willful, wanton and oppressive conduct of White, as agent of his co-defendant, acting within the scope of his authority in effecting such seizure and detention. The General Motors Acceptance Corporation, by its answer, admitted the seizure of the automobile but denied that it was accomplished in the manner alleged in the complaint, and justified the conduct of its said agent by the allegation that he, at the time of the seizure, was advised that plaintiff was in arrears in his payment on a conditional sales or chattel mortgage contract, and that after an interview with the plaintiff the automobile was surrendered by the plaintiff for storage until an investigation could be made of whether the payment claimed to have been made by plaintiff had actually been made or not. The case was tried before Judge Myers and a jury, and at the conclusion of the testimony, the defendant, appellee herein, made a motion not to have the issue of punitive damages submitted. This was overruled and the issue of both actual and punitive damages submitted to the jury. Verdict was rendered for actual damages only. The plaintiff did not make any motion before the trial court to set aside the verdict or for a new trial.

On appeal, appellee submitted a motion to dismiss on the ground that plaintiff being the successful party had no right to appeal from the judgment; that the adequacy of the verdict could only be passed upon by the trial judge in the first instance, and that the aggrieved party must then appeal from the refusal to set aside or correct the verdict. The question thus presented must be determined by the federal practice and federal rules of civil procedure rather than by the rules of practice and procedure in the state court. Rules of Civil Procedure for the District Courts of the United States, rule 81, Subdivision (c), 28 U.S.C.A. following section 723c; Wilcox & Gibbs Guano Co. v. Phoenix Insurance Co., C.C., 61 F. 199, 200; Henning v. Western Union Telegraph Co., C.C., 40 F. 658.

While the general rule is to the effect that one may not appeal from a verdict generally in his favor, or from that portion of the decision which is favorable to himself, he may nevertheless secure a review of that portion of a decision which is adverse. 3 C.J. pp. 635, 636; 4 C.J.S. Appeal and Error, § 183; pages 359, 360, 361. Appellee, among other authorities in support of its motion, relies on the following cases: Public Service Commission et al. v. Brashear Freight Lines, Inc., et al., 306 U.S. 204, 59 S.Ct. 480, 83 L.Ed. ___; New York Telephone Co. v. Maltbie, 291 U.S. 645, 54 S.Ct. 443, 78 L.Ed. 1041; Lindheimer v. Illinois Bell Telephone Co., 292 U.S. 151, 54 S.Ct. 658, 78 L.Ed. 1182. In these cases, however, as in certain others in which the right of appeal was denied, the entire cause of action sued on had been terminated by decrees in favor of appellants, and the appeals were taken merely to obtain review of findings believed to be erroneous, though unnecessary to support the decrees. Thomas & Betts Co. et al. v. Electrical Fittings Corp. et al., 2 Cir., 100 F.2d 403.

The South Carolina cases cited by appellee, Fisher v. Sheridan Co., 182 S.C. 316, 189 S.E. 356, 108 A.L.R. 981, and Wilson v. Southern R. Co., 123 S.C. 399, 115 S.E. 764, in passing upon the question here involved were predicated on what was formerly rule 77 of the Circuit Court of South Carolina, now rule 76. This rule has been liberally construed to deny the right of appeal in cases in which both actual and punitive damages were demanded, but only actual damages allowed, except upon condition that such question had first been presented to the trial court by motion for a new trial or other appropriate method, in which case it was required that the appeal be taken from the refusal to set aside or correct the verdict. See also Gunter v. Fallow, 78 S.C. 457, 59 S.E. 70; Sawyer v. Lumber Co., 83 S.C. 271, 65 S.E. 225; Scott v. Seymour, 105 S.C. 42, 89 S.E. 398; Bellamy v. Grand Lodge, K.P., 110 S.C. 315, 96 S.E. 293; Sloan v. Lee, 121 S.C. 426, 114 S.E. 408, 409; Towill v. Southern R. Co., 131 S.C. 423, 127 S.E. 559. These decisions, however, as above stated, are not applicable to trials in a district court of the United States.

In his statement of the questions involved as required by rule 10 of this court, subdivision 2(b), appellant presents three questions, the first of which we have disposed of. The two other questions challenge the correctness of the rulings of the court and its instructions to the jury. As outlined in appellant's brief they transcend the limits prescribed by District Court's rule 51 and the privileges extended under rule 46. They are sufficient, however, under these rules properly to raise the question of whether the court was in error in refusing to charge appellant's oral request, through counsel, that it did not make any difference what defendant's agent thought if he took the automobile from plaintiff over plaintiff's protest, defendants would be liable for punitive damages. This is the only issue to be determined by this court. The evidence was conflicting as to whether appellee's agent seized the automobile over plaintiff's protest, or by his permission, and also as to the manner in which it was seized, and the language used by appellee's agent at the time. The presiding judge, in an elaborate charge, stated the issues involved and the contentions of the parties as to what occurred, and neither side challenges the correctness of that statement. Near the beginning of the charge it was stated, "Now this case is presented to you for your decision on the facts because of certain conflicting testimony. If you believe the testimony of the plaintiff there was a willful, conscious invasion of plaintiff's legal rights; if you believe the testimony of the defendant, there was not a willful, conscious invasion of plaintiff's legal right." Later on in the charge, the court said: "Now, if on the occasion when Mr. White went to Mr. Galloway's house he acted in an unseemly manner in enforcing what he thought to be a legal right of his company, the jury might be justified in concluding that the action was malicious * * *". The court also said: "I charge you one is not liable for exemplary damages if he acts in good faith, under an earnest sense of duty or right, without any intention to depress or defraud, or without any actual oppression or indignity." Upon denying plaintiff's request above referred to, the court said: "Now, Gentlemen, I charge you that if one under a mistaken idea of his legal rights, undertakes to invade the legal right of another, such as to re-possess or take possession of, for its protection, an automobile, as in this instance, it must be done in a proper manner and without any improper conduct; that there must be no action on the part of the person making the seizure or taking possession of another's property which would indicate oppression or malice, or an utter disregard of the decencies of the action which was taken." The final instruction of the court was to this effect: "If you find in addition that the circumstances of the taking were over the protest of Mr. Galloway, and under such circumstances in spite of the belief of the agent of the company that he was exercising a legal right on the part of the company, were accompanied by such circumstances as indicated a willful invasion of the plaintiff's rights, accompanied with such demonstration or acts as amounted to an indication of malice, or oppression, then you would have a right to find punitive damages."

The charge must be taken as a whole, and when this is done, it is apparent that it covered every phase of the law applicable to the case.

As hereinbefore stated, appellant's entire case rests upon whether the court erred in refusing to charge the jury as requested by counsel that, "If they find, it does not make any difference what he may have thought, if he took the automobile from plaintiff, over plaintiff's protest, they would be liable for punitive damages." Such an instruction would, in addition to excluding from the consideration of the jury the good faith, or sense of duty, under which the defendant's agent claimed to have acted, have required the jury to presume malice or willfulness merely because of the protest of the plaintiff, even in the absence of any word or act otherwise indicating willfulness, recklessness or an exhibition of force tending to create a breach of the peace. Such is not the law. The real test is whether in taking property in possession of another over his protest, the party so taking it is guilty of such conduct as would tend to create a breach of the peace, or would otherwise show a willful, reckless or wanton disregard of his opponent's rights. It is true that a presumption of willfulness, wantonness or recklessness may arise from the conduct of the tort feasor and the circumstances under which the property is seized, but facts must be shown sufficient to give rise to the presumption. The mere taking of property under a claim of right over the protest of one in...