Grant v. Clinkscales, 17246

• Decision Date: 03 January 1957
• Docket Number: No. 17246,17246
• Citation: 230 S.C. 416,95 S.E.2d 854
• Parties: Jack C. GRANT, Respondent, v. Harry C. CLINKSCALES, Appellant.
• Court: South Carolina Supreme Court

Page 854

95 S.E.2d 854

230 S.C. 416

Jack C. GRANT, Respondent, v. Harry C. CLINKSCALES, Appellant.

No. 17246.

Supreme Court of South Carolina.

Jan. 3, 1957.

W. C. Mann, William G. Acker, Pickens, for appellant.

Julien D. Wyatt, Felix L. Finley, Jr., John T. Gentry, Pickens, for respondent.

OXNER, Justice.

This is an action to recover actual and punitive damages for the alleged unlawful seizure and conversion by appellant of a television set. The trial resulted in a verdict for respondent for $500 actual damages and $1000 punitive damages. Most of the exceptions relate to the admission of testimony and can better be understood after a review of the facts and issues raised by the pleadings.

The allegations of the complaint may be summarized as follows:

Appellant is engaged in business at Pickens, South Carolina, under the name of Western Auto Associate Store. On March 26, 1954, he sold to respondent an Emerson television set in a mahogany cabinet for $293.50. Respondent made a small down payment and executed a chattel mortgage or conditional sales contract to secure the balance, payable in weekly installments of $5 beginning April 3, 1954.

On April 11, 1954 he advised appellant that the television set was not operating properly. It was then returned to appellant's place of business for repairs and, for use in the meantime, there was delivered to respondent a television set in a masonite cabinet. The next day respondent went to the place of business of appellant to ascertain whether or not the necessary repairs had been made. He found that his television set was still not working properly. Appellant then proposed to trade to respondent the television set with the masonite cabinet. Respondent did not consider the sets to be of equal value and declined to trade. After some further discussion, appellant agreed to replace the television set sold to respondent with a new one of the same type. This was done and the new set, which for convenience will be hereinafter referred to as the third set, was delivered. This resulted in there being in respondent's home the television in the masonite cabinet and the new set in the mahogany cabinet. The original set purchased by respondent was in appellant's place of business.

Respondent agreed to put the television set with the masonite cabinet in a box which appellant was to pick up the following morning. However, when appellant's agent called by respondent's home he not only removed the television set in the masonite cabinet but also the third set which had been delivered to respondent in exchange for the first set. This was done while respondent and his wife were at work. Upon returning home, they went immediately to appellant's place of business and complained of the removal of the set which had been exchanged. After a heated argument, appellant refused to make any adjustment and ordered them out of the store. They then sought the advice of an attorney whom appellant told, in a telephone conversation, that he had just decided 'to call the whole thing off'. Thereafter on April 22, 1954, this action was commenced.

Appellant alleged in his answer that while the repairs were being made, he permitted respondent to use a television set in a masonite cabinet and also one in a mahogany cabinet similar to that which he had sold him, that after the repairs were completed, respondent insisted on trading the repaired television set for the new mahogany set, which he refused to do; and it was then agreed that he would have one of his employees call by respondent's home and pick up the two television sets which he had been using and respondent would call at his place of business and pick up the set which had been repaired. Appellant vigorously denied ever having agreed to the exchange claimed by respondent and alleged that the repaired television 'is still in the store of the defendant and still is and has been for all these months available for the plaintiff * * *.'

The testimony of each of the parties was substantially in accord with the allegations in his pleadings. That of the respondent was corroborated by several witnesses. It is undisputed that respondent's payments were not in arrears when the television sets were removed from his home. It will thus be seen that the major disputed issue of fact was whether there was an agreement to exchange the new television in the mahogany cabinet for the one originally sold to respondent. If there was such an agreement, appellant's removal of the third set was unlawful. If not, there was no conversion of the third set and respondent was only entitled to the one in appellant's place of business which had been repaired. This issue of fact was submitted to the jury in a very clear charge.

Respondent introduced without objection testimony to the effect that in April, 1954, appellant sold the television originally purchased by respondent to a Miss Lucille Hallum, a teacher in the public schools of Pickens, and shortly after the commencement of this action sent one of his employees to Miss Hallum's home and surreptitiously changed one of the serial numbers in order to conceal the identity of the set. The witnesses were able to identify it, however, by another serial number which had not been changed.

At the conclusion of respondent's testimony, appellant's counsel made the following motion: 'Your Honor, I move for a nonsuit as to unlawful conversion and a nonsuit as to punitive damages, leaving only one question: that of trespass and as to actual damages.'

The Court refused this motion, but held that the complaint only stated a cause of action for the unlawful removal and conversion of the third set and thereupon sua sponte struck out all testimony relating to the sale to Miss Hallum and the changing of the serial numbers.

On cross-examination a...