Lipscomb v. Tanner

• Decision Date: 15 April 1889
• Citation: 9 S.E. 733,31 S.C. 49
• Parties: LIPSCOMB v. TANNER.
• Court: South Carolina Supreme Court

9 S.E. 733

31 S.C. 49

LIPSCOMB v. TANNER.

Supreme Court of South Carolina

April 15, 1889

Appeal from common pleas circuit court of Spartanburg county WALLACE, Judge.

Action by Albertine E. Lipscomb against H. C. Tanner, to recover damages for the unlawful detention of the plaintiff's property. Verdict and judgment for plaintiff, and defendant appeals.

Duncan & Sanders, for appellant.

J. A Corry and Thomson, Nicholls & Moore, for respondent.

McGOWAN J.

It seems that the plaintiff (wife of W. S. Lipscomb) kept an hotel at Saluda, N. C., but that in October, 1884, she removed to Gaffney City, S. C., leaving her furniture in the house she had occupied, consisting of beds, bedding, linen silver-ware, earthen-ware, etc. The property was left in charge of the defendant, Tanner. About January, 1885, the plaintiff sent for the property, but the defendant, upon some matter of alleged counter-claim, refused to deliver it. This detention continued for 18 days. The husband of the plaintiff (W. S. Lipscomb) indicted the defendant in North Carolina for the detention, but this proceeding was withdrawn upon some compromise. The property was delivered upon each party paying half the costs. Afterwards the plaintiff, finding the defendant in Spartanburg, S. C., sued him there, claiming damages for the enforced detention of the property. The complaint stated "that the defendant unlawfully detained from plaintiff certain hotel furniture, (describing it,) the property of the plaintiff, of the value of $1,500, and that by reason of such unlawful detention the plaintiff was damaged $500," etc. The defendant put in a general denial, and for further defense answered, that before this action was commenced the plaintiff began his action in North Carolina, upon the same alleged facts, and upon the same supposed cause of action, which was fully settled and determined before this action was began, and that plaintiff ought not now to be allowed to proceed any further with this suit. Upon the trial a witness for the plaintiff was asked to state "whether or not there was a snow-storm during the time the defendant withheld the property from the plaintiff and the beds, bedding, etc., were all wet and damaged by the leaking upon them to the extent of $100." To this question the defendant objected, but the objection was overruled, his honor, the judge, holding: "There is no special damage alleged, and I do not understand that the witness proposes to prove special damages; that there was an actual injury inflicted on the property by the acts of the defendant; but the plaintiff alleges here that she was injured by such unlawful detention, to her damage so many dollars. Now, if there was a deterioration anywhere in the property sued for, in consequence of such detention, by means of which the plaintiff has been damaged, I am sure she can prove it, but that is all I will allow. Anything that resulted from the storm resulted from the detention." The defendant excepted. The witness then proceeded: "There came a sort of a cyclone or snow-storm, and the mattresses froze plum through," etc. Upon the charge of the judge, the jury found for plaintiff $135, and the defendant appeals upon the following grounds, alleging error: "(1) In allowing evidence to the effect that the property of the plaintiff has been damaged by leakage. (2) In charging 'that plaintiff alleges that the property had been damaged by leakage in the building in which it had been stored, and that this injury had taken place after the demand was made by her, about Christmas or the 1st of January, and had taken place between then and the time the property was delivered to her. Now, upon that state of facts or allegations, she brings her complaint, and demands that, by reason of such unlawful detention of the property, plaintiff was injured.' (3) In charging: 'If the property was injured in that house, and because it was in that house, and because it was kept there and detained from the owner by the defendant, then that injury resulted from the...