Jones v. Parker

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GARY
• Citation: 62 S.E. 261,81 S.C. 214
• Decision Date: 01 September 1908
• Parties: JONES et al. v. PARKER et al.

62 S.E. 261
81 S.C. 214

JONES et al.
v.
PARKER et al.

Supreme Court of South Carolina.

Sept. 1, 1908.

1. Appeal and Error — Reservation of Grounds of Review—Failure to Object. If the presiding judge misstates the issues raised by the pleadings, a failure of counsel to call his attention to the fact, that there may be

[62 S.E. 262]

an opportunity for correction, is a waiver of the right to raise the question on appeal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1309-1314.]

2. Principal and Agent — Undisclosed Principal—Liability of Agent.

If a distress warrant upon its face purported to be the act of P., as landlord, and the tenants upon whose property distress was made, as well as a magistrate making the levy, had no notice that P. was acting merely as agent, P. was estopped to claim that he was a mere agent, in so far as the rights of the tenants are concerned.

3. Trial—Instructions—Conformity to Evidence.

In an action for assault and battery, committed while levying under a distress warrant, a charge that, if P., a defendant, had issued his warrant to L., a magistrate, and authorized him to take with him such persons as might be needed to enforce the distress, that was not authority to appoint somebody to go, without L.'s presence, as a substitute for him, was not erroneous, in that it should have charged that L. had the right to appoint others who might perform the services without his presence, where L. was present throughout the difficulty.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 596-612.]

4. Same.

In an action for assault and battery, committed while levying under a distress warrant, a charge that, if persons should go to a house to levy on goods, and should state that the goods were levied on, but would be left there until they were ready to come and get them, and should leave without the goods, there would be no levy was not objectionable because, under the circumstances stated, the goods would be constructively levied upon and liable for the lien: since, as the action was not for damages arising out of the levy, it was immaterial whether the goods were constructively levied upon and liable for the lien.

5. Landlord and Tenant—Eviction—Distress Warrant.

One having a distress warrant properly issued for past due rent must get peaceable possession of the property, and cannot break the house in order to make entry for the purpose of levying.

6. Assault and Battery — Self-Defense— Grounds.

In an action for assault and battery, committed while levying under a distress warrant, a charge that one has no right, because he has a distress warrant against a person and his goods, to come to his house and break locks to make distress, and if the owner appears while he is there, the owner can order him out and use force necessary to put him out, and he cannot act in self-defense, but must retire, even though excessive force be used against him, because only he can act in self-defense who has been without fault in bringing about the difficulty, was not erroneous.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 4, Assault and Battery, § 11.]

7. Same—Instructions.

In an action for assault and battery upon a wife, committed while levying under a distress warrant, a charge that, if plaintiff is entitled to recover, if defendants were wrongfully there, or if they assaulted her without being attacked, the mere fact that she came into her own house with an axe in her hand would not justify anybody in assaulting her, unless she came in such a manner as to indicate an intention to use the axe on the person: that in that event, if they were there and rightfully in possession of the goods under a distress warrant, they would have the right to defend themselves, but, if they undertook to take wrongful possession of her husband's goods, she had a right to defend them; that a wife has the right to defend her husband, or his goods in his home, against anybody who is undertaking to take possession of them, and if that is what she was doing, defendants had no right to assault her, if they were in the wrong in getting unlawful possession of the goods— was not erroneous as failing to limit the wife's right to defend the goods against any one undertaking to take possession of them to a taking unauthorized by law.

8. Trial — Instructions — Charge on the Facts.

The instruction was not a charge on the facts.

9. Principal and Agent — Misconduct of Agent—Liability of Principal.

Where a person sues out a distress warrant, and sends others to levy under it, he is liable for their misconduct while acting within the scope of their agency.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Principal and Agent, §§ 599-613.]

10. Assault and Battery —Instructions-Measure of Damage.

In an action for assault and battery, committed while levying under a distress warrant for unpaid rent, a charge that, if at the time of levy the rent was paid, the levy was unlawful, because it was defendant's duty to stop the levy, and, if he did not so do, he was liable for any actual damage, but if his failure was merely inadvertence, he was only liable for actual damages, provided his agent making the levy was not guilty of any conscious wrongdoing, and did not act in a high-handed manner in making the distress, was not erroneous as stating an improper measure of damages, when taken in connection with another portion of the charge, where the court stated that the only question for consideration was an alleged assault on the plaintiff's wife, and that the action was not brought to recover damages for the wrongful entry of the husband's home, he being made a party plaintiff only because he was his coplaintiff's husband.

11. Trial—Requests for Charges—Waiver of Objection.

Where, after the court had given his charge, he asked counsel if his requests had been covered thereby, and, upon counsel's stating that one or two of them had not been charged, the court offered to read the requests, but counsel stated that he would not insist upon the court's reading them, held that he thereby waived the right to raise the question that the requests were not charged.

12. Appeal and Error—Harmless Error-Verdict against One of Several Defendants.

If a defendant, in an action against several for an assault and battery, is liable, he is not prejudiced because the verdict is against him only, and in favor of his codefendants, where no issues were raised by the pleadings as to the rights of the defendants among themselves.

Appeal from Common Pleas Circuit Court of Richland County.

Action by Eliza Jones and husband against E. W. Parker and others. Judgment for the named plaintiff against the named defendant, who appeals. Affirmed.

Robt. Moorman and Frank G. Tompkins, for appellant.

Washington Clark and Jas. H. Fowles, for respondent.

GARY, A. J. The complaint alleges that on the 9th of January, 1906, the defendants violently assaulted the plaintiff, Eliza Jones, thereby producing a miscarriage, to her damage $5,000. The defendants interposed a

[62 S.E. 263]

general denial, and the defendant Parker also set up as a defense: "That at the time mentioned in the complaint, he was engaged in the business of real estate agent in the city of Columbia, and, as such, represented Mrs. Mamie McCreary Melton in renting out, in his own name as agent, about 25 cottages, in what is known as 'Spring Park, ' including the cottage known as 'No. 26 Spring Park.' That prior to the time mentioned in the complaint this defendant had rented the said No. 26 Spring Park to one Eli Jones, and on or about January 6, 1906, there being then some $8 of rent in arrear and due to this defendant, he issued his distress warrant in due form of law, addressed to E. A. Lorick, a magistrate of Richland county, authorizing and requiring him to call to his aid such persons as might be necessary, and to enter upon the said premises, and there make distress of the...