Industrial Welding Supplies, Inc. v. Atlas Vending Co., Inc.
| Decision Date | 07 April 1981 |
| Docket Number | No. 21425,21425 |
| Citation | 277 S.E.2d 885,276 S.C. 196 |
| Court | South Carolina Supreme Court |
| Parties | INDUSTRIAL WELDING SUPPLIES, INC., Appellant, v. ATLAS VENDING CO., INC., Respondent. |
Willis Fuller, Jr., Charleston, for appellant.
William D. Richardson of Richardson & Johnson, Greenville, for respondent.
This is the second appeal in this case. See Industrial Welding Supplies, Inc. v. Atlas Vending Co., Inc., 272 S.C. 293, 251 S.E.2d 741. We are concerned in this appeal with (1) the right of appellant to amend the complaint relating to damages, (2) the measure of damages in a case for wrongful conversion of personal property and, (3) the instructions to the jury relative to the burden of proof and the duty to mitigate damages.
Appellant and respondent had an arrangement under which appellant provided full CO 2 gas cylinders for use in respondent's drink vending machines. Under the agreement appellant provided full gas cylinders and, upon their use, exchanged full cylinders which it had refilled. After several years of this relationship, respondent discontinued the use of appellant's services at the end of 1973. Appellant then, on March 1, 1974, made demand for return of the empty cylinders, but they were not returned. This action ensued on March 10, 1977 to recover possession of the cylinders retained by respondent or, in the alternative, their value.
After the issuance of the court's opinion in the first appeal of this case, appellant attempted to amend its complaint so as to raise the amount claimed as damages from $5,012.00 (the original amount claimed) to $10,888.00 (the alleged value of the property at the time of trial). This motion to amend was denied.
At the trial, appellant presented evidence that the value of the cylinders at the time of refusal to redeliver was $5,012.00 and, over objection, was approximately $10,888.00 at the time of trial. A motion by appellant during trial to amend the complaint to conform to the proof relative to the value of the cylinders was denied by the trial judge.
Appellant's requested instruction to the jury, that the highest value of the property up to the time of trial might be awarded according to the jury's view of the justice in the case, was also denied. Likewise a motion for a new trial based upon alleged errors in the foregoing trial rulings was refused, from which this appeal comes.
The threshold question concerns the proper measure of damages for conversion of property. We have previously adopted the principle that, as a general rule, the measure of damages in a case for conversion of personal property is the value of the property with interest thereon and the jury may give the highest value up to the time of trial. Gregg v. Bank of Columbia, 72 S.C. 458, 52 S.E. 195. In Gregg, it was pointed out that a jury is not required to adopt the highest value up to the time of trial as the measure of damages, but is permitted to do so according to its view of the justice of the case.
We think that the trial judge was in error in refusing to permit appellant to amend its complaint so that it might pursue the claim for the value of the property up to the time of trial. A motion to amend pleadings, in furtherance of justice, under Section 15-13-920, Code of Laws of South Carolina, 1976, is addressed to the sound discretion of the trial judge and his action is not subject to review unless there is shown an abuse of discretion. Monteith v. Harby, 190 S.C. 453, 3 S.E.2d 250.
The amendment sought in this case did not change the cause of action, but merely affected the extent of relief. Respondent was apprised of the nature of the amendment before trial and was able to present testimony on the issue of damages sought to be raised. While a considerable amount of time elapsed between the filing of the complaint and the request for amendment, a substantial amount of this delay was the result of the first appeal pursued by respondent. The record fails to show neglectful or dilatory tactics on the part of appellant. Neither is there any basis for a claim by respondent of prejudice by surprise. We therefore hold that, under these facts, appellant should have been allowed to amend its complaint so as to pursue its full claim for damages.
The appellant also challenges the trial judge's charge that the law places the burden on the bailor to prove that loss was due to the failure of the bailee to exercise ordinary care in the safekeeping of the property. We agree that this charge was erroneous.
It is well established in this State that the burden is upon the bailee to prove due...
To continue reading
Request your trial
-
Shaw v. Martin
... ... that the judge had presided at an alleged co-conspirator's trial was held not to be ... See, e.g., Miller v. Mercy Hospital, Inc., 720 F.2d 356, 368-69 (4th Cir.1983); EEOC v ... ...
-
Bank of New York v. Amoco Oil Co.
...cite one case in which a court held that a bailor under Article 7 had no duty to mitigate. Industrial Welding Supplies, Inc. v. Atlas Vending Co., Inc., 276 S.C. 196, 277 S.E.2d 885, 887 (1981). Generally, the duty to mitigate is a limitation on consequential damages. See N.Y.U.C.C. Sec. 2-......
-
Haskins v. Fairfield Elec. Co-op.
...determination of any other issue and a new trial can be limited solely to the issue of damages. Industrial Welding Supplies, Inc. v. Atlas Vending Co., 276 S.C. 196, 277 S.E.2d 885 (1981); White v. Fowler, 276 S.C. 370, 278 S.E.2d 777 (1981). We hold where a husband obtains a judgment for i......
-
Graham v. Whitaker
...trial on a particular issue only is appropriate in the interest of judicial economy. In the case of Industrial Welding Supplies v. Atlas Vending Co., 276 S.C. 196, 277 S.E.2d 885 (1981), this court ruled that a new trial could be limited to a single issue. Here, we have held that there were......
-
What's So Different About Bailment?
...119 (1950). [10] Marlow v. Conway Iron Works, 130 S.C. 256, 125 S.E. 569 (1924). [11] Indus. Welding Supplies v. Atlas Vending Co. Inc., 276 S.C. 196, 277 S.E.2d 885 (1981). [12] Hadfield, at 99, 538 S.E.2d at 274. [13] Childers v. Gas Lines, Inc., 248 S.C. 316, 324, 149 S.E.2d 761, 765 (19......