Gordon v. Rothberg

• Decision Date: 09 November 1948
• Docket Number: 16143.
• Citation: 50 S.E.2d 202,213 S.C. 492
• Parties: GORDON v. ROTHBERG et al.
• Court: South Carolina Supreme Court

50 S.E.2d 202

213 S.C. 492

GORDON v. ROTHBERG et al.

No. 16143.

Supreme Court of South Carolina

November 9, 1948

[Copyrighted Material Omitted]

Mills & Schultz of Columbia, for appellants.

Baker & Baker, of Columbia, for respondent.

BAKER, Chief Justice.

This is an action in tort in which the respondent recovered a judgment against the appellants for both actual and punitive damages, the cause of action being bottomed on an alleged illegal, wilful, wanton and malicious trespass by the appellants upon real property in the sole possession and control of the respondent.

Although the pleadings, that is, the complaint of the respondent, the answer and counterclaims of the appellants, a reply by the respondent, and a demurrer to the counterclaims are set out in full in the record, no issue is raised on this appeal as to the disposition made of the counterclaims of the appellants, the reply of the respondent, or the demurrer. Indeed, it is unnecessary that we herein set forth even a summary of the complaint and the answer, the tenor of which can be gathered respectively from the opening statement in this opinion, and from appellants' statement of 'Questions Involved,' No. 2.

The appellants state the 'Questions Involved' to be:

'1. Should a mistrial have been granted by the Trial Judge because of prejudicial remarks of counsel for Respondent?

'2. Should the Trial Judge have submitted the question of Appellant's plea of joint venture to the jury?

'3. Should the recovery of actual damages have been ordered or be allowed to stand?

'4. Should the Trial Judge have submitted the question of punitive damages to the jury and should the recovery be allowed to stand?

'5. Should a new trial be ordered because of remarks of the Trial Judge which were prejudicial to Appellants?'

Before attempting to enter upon a discussion of these questions, it is proper to state that the basic facts of this case are, for all practical purposes, undisputed; and stated briefly, show:

The respondent was the owner of a business located about two miles outside the city limits of Columbia, engaged in the manufacturing of metal chairs. The appellants, Hyman Rothberg, Michael Rothberg and Hank M. Rothberg, a copartnership doing business under the name and style of Rothberg Manufacturing Co., had a place of business on the same lot or near to respondent's business, where they manufactured the seats and backs for respondent's chairs and which were sold to the respondent on a time basis. There was also another partnership, consisting of the three Rothbergs above named, their father, who died prior to the commencement of this action, and a Mr. Tomlinson, doing business under the firm name and style of Merchandise Mart. This last named partnership had the exclusive right under a contract with respondent to dispose of the output of his chair factory at a 20% discount, or commission to them based on the current market price of the chairs at the time of purchase or sale. The property on which all of these businesses were conducted, was owned by M. B. Kahn and by him leased to appellants, who subleased it to Merchandise Mart the appellants and Merchandise Mart, under an agreement between themselves, absorbing the $600 monthly rental in equal amounts. When the respondent established his business for the manufacture of chairs, he subleased from Merchandise Mart, a shed, its dimensions being sixty feet by one hundred feet, located on this Kahn property at a yearly rental of $1 and further agreeing to grant Merchandise Mart the exclusive sales rights to the merchandise to be manufactured by him. The respondent then converted the shed to his purpose at his own costs, moved his machinery therein, and entered upon the business of manufacturing metal chairs, using as the backs and seats for his chairs, the products intended for this purpose and which was manufactured by appellants, and purchased by him from appellants. The respondent commenced the manufacture of chairs about March 15, 1946, and remained in business for approximately nine months and to the time when he was informed by Merchandise Mart, through Hyman Rothberg, that they would not accept any more chairs after December 1st, and having no sales organization of his own, and being unable to find a market for his manufactured product, although he had undertaken to do so, and having all of his capital tied up in this manufacturing enterprise in machinery, in merchandise on hand and in material which had not been processed, he was forced to close the business. During the time respondent was operating this chair factory, the appellants advanced him money from time to time, with which to meet his pay roll, and for other purposes of the business, and waited for the repayment of these advances until he could collect from Merchandise Mart for chairs sold to them or by them. However, at the time the respondent was forced by conditions to discontinue his business, he was indebted to the appellants in the sum of $684.23, and to Merchandise Mart in the sum of $121.95.

Following the closing of the business, the appellants gave employment to the respondent at a weekly wage. The respondent first tried to sell his entire business, but in this he was not successful. He then tried to sell as much of the equipment as he could. He finally located a customer who was interested in buying his tube bending machine, the most expensive piece of machinery or apparatus in the building, and a machine which was scarce on the market. After the respondent had closed his chair factory and at some time prior to when he met this prospective purchaser at his place of business so that he could inspect the tube bending machine, there had been a discussion between respondent and appellants concerning the indebtedness of the former to the latter, and during this discussion the respondent had stated that he would not be able to pay this indebtedness as it was his duty to refund money he had borrowed from relatives and which had been used in purchasing machinery for the chair factory, and there would not be sufficient from the sale of all assets to pay all of even the borrowed money, and that he did not intend to pay the amount owed the appellants. The respondent had padlocks on the doors to his chair factory, and was the only person in possession of the keys thereto. Without molesting the respondent's padlocks, the appellants placed additional padlocks on all of the doors, which came to the knowledge or notice of the respondent for the first time when he met the prospective purchaser, who was from North Carolina, at the closed factory. So far as the record discloses, there had been no machinery or stock removed from the factory from the date when operations ceased.

On the night of April 15, 1947, by appointment made over the telephone, the prospective purchaser having come to Columbia to inspect the tube bending machine in respondent's factory, met the respondent at his factory. The respondent was unable to gain entrance to the building through any of the doors by reason of the locks which had been placed thereon by appellants. The respondent noticed a light on over at the building occupied by Rothberg Manufacturing Co. and went over there, which was only a short distance. Soon thereafter, 'Hy' Rothberg, one of the appellants, arrived at the place of business of the appellants, and admitted having placed the additional locks on the building or factory of the respondent. The testimony is in considerable conflict as to what took place between the parties to this action at that time (and also the next morning), but one door was finally opened by forcing the stronger lock, the appellants being unable to find the key thereto that night, and the machine in which respondent's customer was interested was inspected, but under circumstances embarrassing to the respondent, the said 'Hy' Rothberg (we assume Hyman Rothberg) with some of his employees accompanying the respondent and his customer into the building, and remaining throughout the inspection. As a result of this inspection, and an additional inspection the following morning, a sale of the tube bending machine was effected. There was some delay in gaining entrance to the building that morning, but the keys to the locks which had been placed on the doors by the appellants were produced by them, and the doors opened. Prior to the machine being moved from the building or factory, appellants were paid the full amount of the indebtedness of the respondent to them, and also his indebtedness to Merchandise Mart, and respondent was then permitted to remove the machine.

The admitted fact is that the appellants, without consulting an attorney, placed these locks on this building which was in the sole possession and control of the respondent with the intent of thus enforcing the collection of the respondent's indebtedness to them, and to Merchandise Mart, in which they had an interest.

Having set forth the foregoing pertinent testimony in the case, we will now proceed to discuss the 'Questions Involved' as stated by the appellants.

During the trial of the case, and while one of the appellants, Michael M. Rothberg, was being cross examined by counsel for respondent in reference to his wealth, and the financial worth of the businesses or partnerships in which he was interested, this witness had testified that Rothberg Manufacturing Co. was on the verge of bankruptcy, and insolvent. We now quote from the record:

'Q. How long have you been connected with Rothberg Manufacturing Company? A. Since its inception--about five or six years.

'Q. Rothberg Manufacturing Company was in business during the War, was it not? A. That's correct.

'Q. What did you manufacture during the War, sir? A. Smoke-bomb...