Mims v. Bennett

• Decision Date: 10 April 1931
• Docket Number: 13115.
• Citation: 158 S.E. 124,160 S.C. 39
• Parties: MIMS v. BENNETT et al.
• Court: South Carolina Supreme Court

158 S.E. 124

160 S.C. 39

MIMS v. BENNETT et al.

No. 13115.

Supreme Court of South Carolina

April 10, 1931

Appeal from Common Pleas Circuit Court of Orangeburg County; B. H Moss, County Judge.

Action by R. Ernest Mims against A. B. Bennett and others. Judgment against A. B. Bennett, and he appeals.

Affirmed conditionally.

W. D Bennett, of Holly Hill, and M. E. Zeigler, of Orangeburg, for appellant.

E. H Blackmon and Ed C. Mann, both of Orangeburg, for respondent.

BLEASE C.J.

In his complaint, the respondent alleged his employment as a rural mail carrier and ownership of a certain Ford automobile; that while he was engaged in the post office at Eutawville, making up his daily mail preparatory to its delivery, and when his automobile was parked in front of the post office, "the defendants, Robert Bennett and Darby Sanders as the agents servants and employees of the defendant, A. B. Bennett," did unlawfully and wantonly seize the automobile and drive the same to Holly Hill, where it was turned over to the defendant A. B. Bennett; that thereafter his demand on the defendant A. B. Bennett for the return of the automobile was refused, and that A. B. Bennett continued in the unlawful possession thereof; that the three defendants unlawfully and willfully deprived the respondent of the use and benefit of his automobile, and converted the same to their own use; that respondent was forced to hire conveyances for the delivery of the mail; that he was compelled to buy another automobile; that his credit was impaired, his reputation for honesty hurt; and that he was made the subject of the ridicule of the public; and damages in the sum of $2,950 were alleged and demanded.

The defendant A. B. Bennett interposed a general denial.

The defendants Robert Bennett and Darby Sanders, in their answer, admitted the seizure of the automobile of respondent, but denied the other material allegations of the complaint, and further alleged that the taking of the automobile by them was legal under the terms of a past-due and unpaid chattel mortgage executed by the respondent, but they did not set up in their answer to whom the mortgage was given, or who was the owner of it at the time of seizure.

The defendants Robert Bennett and Sanders took the position that the allegations of the complaint with reference to the duties of the respondent as a rural mail carrier were immaterial to the case, and moved that they be struck out. It does not appear that this motion was directly passed upon by the presiding judge; but defendants' counsel objected to testimony to sustain the allegations referred to, which objections were overruled.

The trial in the county court of Orangeburg before his honor, County Judge B. H. Moss, and a jury, resulted in a verdict and judgment in favor of the respondent against the defendant A. B. Bennett alone for $450 actual damages and $450 punitive damages. The motion of the losing defendant for a new trial on numerous grounds, including the one that the verdict was illogical and could not stand, was refused.

From the judgment entered on the verdict, the defendant A. B. Bennett has appealed to this court.

There are sixteen exceptions, but the attorneys for the appellant have grouped these as presenting six questions. So, without referring to the exceptions in detail, we shall undertake to dispose of the questions stated, although we shall not follow the order in which they have been set forth by the appellant.

By the first question, referring to the motion for a directed verdict and to the motion for a new trial in favor of the appellant, it is insisted that there was no evidence to show that Robert Bennett and Darby Sanders, who seized the automobile, were acting at the time as the agents of the appellant.

The appellant and his two codefendants testified that Robert Bennett and Sanders were not acting for the appellant at the time of the seizure. Robert Bennett and Sanders, as well as another witness, F. E. Hawthorne, testified that the automobile was seized at the instance of Hawthorne, a son-in-law of the appellant, who, it was alleged, was conducting Holly Hill Motor Company, Inc., under a chattel mortgage executed by the respondent to N.C. and D. A. Bennett, sons of the appellant, who had transferred the mortgage to the motor company.

If there had been no evidence contradicting the claims of the appellant, as shown by the testimony to which we have referred, it would be proper to answer this question in the negative. But we find in the record some evidence, both direct and circumstantial, which required the court to submit the question of agency to the jury.

The respondent testified that he purchased the automobile from N.C. Bennett, and gave him a chattel mortgage to secure the balance of the purchase price, that he had been making his payments to N.C. Bennett, who held the paper, and that he had not executed any mortgage to N.C. Bennett and D. A. Bennett. He introduced in evidence a typewritten letter, carrying in typewriting appellant's name, dated May 20, 1929, received in due course of mail, notifying him not to pay any more money on the automobile to N.C. Bennett, but to make payment to the "G. M. A. C. at Columbia, S.C. if they hold your paper, and if they do not hold your paper, make your payments to D. A. Bennett or at my office, Holly Hill." Another typewritten letter, alleged to have been sent for the appellant, dated June 22d, also introduced, notified the respondent that N.C. Bennett "had not a red penny piece in the automobile that you purchased through him," and again warned the respondent not to pay any more money on it to N.C. Bennett. Respondent said in his testimony: "In response to these letters I went to see A. B. Bennett. He told me not to make any more payments to N.C. Bennett." On September 18, 1929, two days after the car had been seized, the respondent, as he testified, made demand on the appellant for the automobile, and was asked by him "if I thought I had any right to the car," and, upon an affirmative reply by the respondent, the appellant said, "Why don't you pay for the car?" and further, "Get it from the man you are paying, you can't get it from me." Respondent testified positively: "I know Darby Sanders and R. A. (Robert) Bennett. They worked for A. B. Bennett at that time."

Witness E. H. Dantzler testified that, at the time Robert Bennett and Darby Sanders seized respondent's automobile, "they were working for A. B. Bennett." And while his testimony on that point was weakened considerably on cross-examination, the fact remained that he did make the positive statement on his direct examination. Heyward Jackson swore that Sanders and Robert Bennett had been working for A. B. Bennett "ever since I have known them." On his cross-examination, the appellant said that Sanders and Robert Bennett "might have done some work for me" on the day the car was seized.

It is contended by the appellant, since there was no verdict against Robert Bennett and Darby Sanders, who were alleged to have acted as the agents of the appellant, that the verdict against the appellant is illogical and cannot stand (fourth question). To sustain his proposition, the appellant relies upon the legal principle that, "where a master and his servant are sued together for the same act of negligence or willful tort, and the master's liability rests solely on the servant's conduct, a verdict against the master alone is illogical and cannot stand." Weeks v. Carolina Power & Light Co., 156 S.C. 158, 153 S.E. 119, 121. See, also, the other cases cited by appellant, declaring the same principle, as follows: Johnson v. A....