Hyde v. Southern Grocery Stores

• Decision Date: 10 June 1941
• Docket Number: 15278.
• Parties: HYDE v. SOUTHERN GROCERY STORES, Inc.
• Court: South Carolina Supreme Court

15 S.E.2d 353

197 S.C. 263

HYDE v. SOUTHERN GROCERY STORES, Inc.

No. 15278.

Supreme Court of South Carolina

June 10, 1941

[Copyrighted Material Omitted]

Thomas Cain & Black, of Columbia, and Garvin & Simons, of Aiken, for appellant.

Gregory & Gregory, of Lancaster, and Williams & Busbee, of Aiken, for respondent.

FISHBURNE Justice.

In this action plaintiff sought the recovery of actual and punitive damages against the defendant for the alleged malicious and wrongful attachment of his property, and the trial resulted in a verdict for the plaintiff in the sum of $3,000, actual damages. From the judgment entered thereon the defendant appeals.

The attachment proceedings were instituted in the Court of Magistrate G. C. Carnes in Lancaster, South Carolina, against the plaintiff and one Nick Petronis, for the collection of a debt alleged to be due by them to Rogers Stores. All of the legal issues now before the Court on this appeal arose out of the following facts and circumstances connected with that proceeding.

The plaintiff was the owner of a carnival show, and did business in the name of Eric B. Hyde Shows. His paraphernalia consisted of merry-go-rounds, ferris wheels, and various other amusement devices. The equipment included tents trucks, and other property connected with the show. The winter quarters of the plaintiff were located near the city of Columbia, in Richland County. As was his custom, the plaintiff opened his show in Columbia in the early spring of 1938, for a run of two or three weeks before taking the road upon a pre-arranged itinerary. In addition to the amusement devices owned and operated by the plaintiff, as a source of revenue he rented space to numerous concessionaires who owned their own equipment and individual businesses. Among these was Nick Petronis, who obtained a concession from the Hyde Shows upon a weekly rental basis for the conduct of a cook tent.

While in Columbia, the Hyde Shows purchased all meats and groceries for their employees from the defendant's store on Main Street, where J. E. Strange was store manager and had supervision of the grocery department, and C. L. Shealy was the manager of the meat department. These supplies were purchased by Mrs. Hyde, the wife of the plaintiff, who paid cash for each and every item bought. There was no charge account, and no credit was asked or extended. The defendant store likewise sold groceries and meats to Nick Petronis, and extended credit to him in the sum of about $100. The plaintiff did not request or authorize the credit extended to Petronis, did not guarantee payment, and had no knowledge or notice of the transaction. It is admitted that the defendant looked solely for payment to Petronis, and that the plaintiff was not indebted to the defendant in any amount at the time the writ of attachment was issued.

After showing in Columbia, Hyde Shows moved to Winnsboro, South Carolina, for one week. While there Mr. Shealy, with the knowledge of Mr. Strange, went to Winnsboro in an effort to collect the indebtedness from Petronis, but failed to make collection. The following week the plaintiff exhibited at Lancaster, South Carolina, under the auspices of the local American Legion Post. About the middle of that week, on April 21, 1938, Mr. Shealy went to Lancaster to again interview Petronis with reference to the indebtedness, which it appears had been incurred for both meat and groceries. Being unable to make collection, he went to the office of Magistrate Carnes and sought a writ of attachment against Petronis and the Hyde Shows. Upon the advice of the magistrate, and before the writ was issued, he saw Petronis again, the same day, and sought without success to collect the debt. Whereupon, returning to the office of the Magistrate, the attachment proceeding was instituted in the name of the defendant, as plaintiff, against Nick Petronis and Hyde Shows. The summons was directed to Nick Petronis and Hyde Shows, and demanded judgment in the sum of $99.99 on account of groceries bought and delivered. When the writ was issued, the defendant gave the statutory bond in the sum of $25, with C. L. Shealy as surety. No affidavit in support of the attachment was made on behalf of the defendant.

Under the writ of attachment the Magistrate's constable, Mr. Pope, proceeded to the Fair Grounds, where the show was exhibiting, and served copies of the papers, including the writ, upon Mr. Hyde personally. The writ commanded that he attach and safely keep the property of Hyde Shows and Nick Petronis in Lancaster County. The constable stated to Mr. Hyde that he was then and there attaching all of his property, which included merry-go-rounds, ferris wheels, and other bulky and ponderous amusement devices incapable of physical seizure. When the attachment was made, Mr. Hyde vainly protested that he did not owe the defendant any money. This occurred on Friday. The following day, and on several occasions between that time and Thursday of the next week, the plaintiff protested to the Magistrate and sought the release of his property on the ground that he was not indebted to the defendant. He was told that his property was attached under the writ, and the Magistrate forbade him to remove it.

Hyde Shows was scheduled to show in Lancaster only one week, and had made arrangements to appear at Chester, South Carolina, the following week. It was not until the middle of the week, however, that Hyde finally secured a bond and obtained a release of his property, so that he was unable to fill the Chester engagement. The day after he filed his bond, Nick Petronis, whose truck had been attached, paid the magistrate the amount of his debt to the defendant, and in the view of the Magistrate, this ended the case.

In addition to damages alleged to have been suffered by the plaintiff in the way of embarrassment and humiliation, he had to meet a pay-roll of twenty employees for the week he was unable to show at Chester, amounting to $517. He claims to have lost a weekly income from eight concessionaires who were under contract to pay him $250. He testified to various other items of damage suffered by him by reason of the wrongful attachment of his property.

The defendant assigns various errors to the trial court because of its refusal to grant its motion for a nonsuit and for a directed verdict.

We will first consider the contention of the defendant, that it should not be held liable because Shealy, the manager of its meat department, was without authority to institute the attachment proceedings in its name, and that in so doing he was acting outside of the actual scope of his employment. It is argued by the defendant that not only was Shealy acting without authority and contrary to express instructions, but that he was effecting his own independent purpose in suing out the attachment.

Under the doctrine of respondeat superior, it is generally held that the master is liable for the wrongful acts of his servant while acting as such within the scope of his employment. The principle may be deduced from the authorities that an act is within the scope of a servant's employment where reasonably necessary to accomplish the purpose of his employment and is in furtherance of his master's business. Lazar v. Great Atlantic & Pacific Tea Co., S.C., 14 S.E. 560, Opinion filed April 30, 1941; Hancock v. Aiken Mills, 180 S.C. 93, 185 S.E. 188; Cantrell v. Claussen's Bakery, 172 S.C. 490, 174 S.E. 438.

The primary test to determine a master's liability for an act of his servant is, whether the servant committed a wrongful act in the doing of his master's work. It is the character of the employment, and not the private instructions given by the master to the servant, that must determine his liability. Hancock v. Aiken Mills, supra.

If the servant is performing some act in furtherance of the master's business he will be regarded as acting within the scope of his employment, although he may exceed his authority. If there is doubt as to whether the servant in injuring a third person, was acting at the time within the scope of his authority, the doubt will be resolved against the master, at least to the extent of requiring the question to be submitted to the jury for determination. Cantrell v. Claussen's Bakery, supra; Matheson v. American Telephone & Telegraph Co., 137 S.C. 227, 135 S.E. 306; 39 C.J., pp. 1283, 1284.

In our opinion, under the foregoing principles of law, it may reasonably be inferred that Shealy, who was not a mere subordinate servant, was acting within the scope of his employment, and in furtherance of the defendant's business, even though he committed a grave error of judgment, and may have exceeded his authority.

We recognize the soundness of the proposition that the act of a servant done to effect some independent purpose of his own, and not with reference to the service in which he is employed, is not within the scope of his employment so as to render the master liable therefor. Under these circumstances, the servant alone is liable for the injury inflicted. If the servant steps aside from the master's business for some purpose wholly disconnected with his employment, the relation of master and servant is temporarily suspended, and the master is not liable for his acts during such time. Hancock v. Aiken Mills, supra.

The question then is, was Shealy at the time he sued out the writ of attachment acting in an individual capacity, and bent upon an independent purpose of his own, or was he acting with reference to the service in which he was employed, and in furtherance of his master's business?

There is no evidence that the business of the defendant's store in Columbia was conducted wholly upon a cash basis. The contrary is true. Mr. J. F. Alman, the...