Gordon v. Rothberg, 16143.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: BAKER, Chief Justice
• Citation: 50 S.E.2d 202
• Parties: GORDON . v. ROTHBERG et al.
• Docket Number: No. 16143.,16143.
• Decision Date: 09 November 1948

50 S.E.2d 202

GORDON .
v.
ROTHBERG et al.

No. 16143.

Supreme Court of South Carolina.

Nov. 9, 1948.

[50 S.E.2d 203]

[COPYRIGHT MATERIAL OMITTED]

[50 S.E.2d 204]

Appeal from Common Pleas Circuit Court of Richland County; J. Henry Johnson, Judge.

Action in tort by Sherman M. Gordon against Hyman Rothberg and others, a copartnership doing business under the name and style of Rothberg Manufacturing Company, for damages for trespass, wherein defendants counterclaimed. Judgment for plaintiff and defendants appeal.

Affirmed.

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 busincss 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

[50 S.E.2d 205]

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 manufacured 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 indebted ness 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...