Moody v. Stem

• Decision Date: 30 December 1948
• Docket Number: No. I616.,I616.
• Citation: 51 S.E.2d. 163,214 S.C. 45
• Court: South Carolina Supreme Court
• Parties: MOODY. v. STEM et al.

51 S.E.2d. 163

214 S.C. 45

MOODY.

v.STEM et al.

No. I616.

Supreme Court of South Carolina.

Dec. 30, 1948.

Appeal from Common Pleas Circuit Court of Darlington County; E. H. Henderson, Judge.

Action by D. Coit Moody against F. B. Stem and others, a partnership, doing business under the name and style of Center Brick Warehouse, to recover actual and punitive damages for alleged overcharge of auction fees in tobacco auction ware-house. From an order granting defendants' motion to strike certain allegations from the plaintiff's complaint, the plaintiff appeals.

Order affirmed.

Mozingo & Watts and C. R. Parrott, all of Darlington, for appellant.

Dargan, Paulling & James, Sam Rogol, Samuel Want, LeRoy M. Want and James S. Verner, all of Darlington, for respondents.

BAKER, Chief Justice.

The appellant, plaintiff in the Circuit Court, alleges in his complaint that he deposited several piles of tobacco on the floor of the tobacco auction warehouse operated by the respondents, to be sold (presumably) according to the usual practice of tobacco auction markets, and that the auction fees charged to and collected from the appellant on each of two of the piles of tobacco exceeded by twenty-five cents the fees permitted by the statute prescribing the charges to be made by tobacco warehousemen. See Code 1942, Sec. 7197. On the basis of this overcharge, the appellant asks damages, "actual and punitive, " in the amount of $3000.

The total actual loss or damage sustained by the appellant being clearly defined in the complaint as limited to fifty cents, the appellant expanded the statement of his cause of action by alleging that the respondents overcharged him "wilfully, wantonly, deliberately and unlawfully, as they have habitually done"; that the respondents "thereby wilfully, wantonly, deliberately and unlawfully" overcharged the appellant fifty cents; "that said overcharge has been habitually practiced" by the respondents; and that the overcharge was made "as a part of a plan and scheme to cheat and defraud plaintiff and the other customers" of respondents. And it is alleged that "because of the wilful, wanton, deliberate and unlawful acts of the defendants as herein set forth, plaintiff has been damaged in the sum of Three thousand ($3000.00) Dollars actual and punitive damages."

The matter before this Court is an appeal from an order of the lower court granting respondents' motion to strike from the complaint the above quoted and emphasized allegations of the complaint on the ground that the same are irrelevant and redundant, and are not supported by any facts alleged in the complaint, and permitting the appellant to amend his complaint by setting forth a cause of action to recover actual damages in the amount of 50 cents.

A number of other similar suits now pending are, by stipulation of counsel, to be controlled by the decision on the present appeal. On this subject, the Transcript of Record contains the following: "The present action is one of twenty-eight similar actions by various plaintiffs against the same respondents, pending in the same court, and in all of which the counsel for the parties in the present action are also counsel for the respective plaintiffs and defendants in the remaining actions. The total amount of actual damages alleged in the twenty-eight actions is Sixteen and 25/100 ($16.25) Dollars, and the total amount of damages claimed as 'actual and punitive damages' is Eighty-four Thousand ($84,000.00) Dollars. It has been agreed among counsel that the decision in the present cause shall be deemed controlling in each of the other cases."

The Code section above cited, 7197, and which is the foundation of appellant's cause of action, reads as follows: "The charges and expenses of handling and selling leaf tobacco upon the floor of tobacco warehouses in this State shall not exceed the following schedule of prices, to-wit: for auction fees fifteen (15) cents on all piles of one hundred pounds or less, and twenty-five (25) cents on all piles over one hundred (100) pounds. For weighing and handling, ten (10) cents per pile for all piles of less than one hundred (100) pounds and ten cents for each additional one hundred (100) pounds; for commission on the gross sales of leaf tobacco in said warehouses not to exceed two and one-half per centum. The proprietor of each and every warehouse shall render to each seller of tobacco at his warehouse a bill, plainly stating the amount charged for weighing and handling, the amounts charged for auction fees and the commission charged on such sale; and it shall be unlawful for any other chargesor fees exceeding those herein named to be made or accepted.'" (Emphasis added.)

No penalties are provided for violation of this Act. See State ex rel. Moody v. Stem et al., S.C, 50 S.E.2d 175.

Aside from the legal principles that govern the disposition of this appeal, the absence from the complaint of certain factual matter is worth noting.

Why did the appellant pay the excess charges? He does not allege that any representations were made to him by the respondents; or that he was coerced; or that there was an element of duress in the fact that he would have suffered some loss or disadvantage if he had carried his tobacco to some other warehouse; or that other warehouses charged lower fees and in accord with the governing statute; or that he objected to the overcharge. The only reasonable inference from the complaint is that at the time of the transaction in question, the appellant did not know that the charge of auction fees to which he objects in this case exceeded the statutory rates, in consequence of which he acquiesced in such charge as a voluntary payment founded upon his ignorance of the law.

Equally noticeable is the failure of the appellant to allege that the respondents made the overcharge with knowledge at the time that they were violating the law. It is difficult to avoid the inference that the respondents were likewise ignorant of the law in receiving and accepting (by way of deduction from appellant's sales ticket) the amount of the overcharges.

Even more significant, is the absence from the complaint of any allegation that appellant demanded, before instituting his suit, the refund of the amount of the overcharge. Assuming, without deciding, that it is unnecessary in a case of this character to allege demand and refusal of the demand, and it may be taken to be a reasonable inference that had such a demand been made (or even the attention of the respondents directed to the governing statute), the respondents would have complied with it by promptly refunding the amount of the overcharge, and thereby have negatived any fraudulent or conscious violation of law or, to state the matter another way, if such demand had been made and refused, or if the matter had been called to the attention of respondents and they took no action thereabout, there would have been created some foundation for the characterization of respondents' conduct as wilful, wanton, and deliberate, as well as unlawful.

It is unnecessary to consider whether these matters of fact, absent from the case attempted to be stated in the complaint, have controlling legal force. If it be conceded (without so holding) that they haven't, they still bear upon the question whether the disposition of this case made in the Circuit Court deprives the appellant of full redress for the breach by respondents of their implied contractual obligation and their legal duty-to limit their charges to the rates provided by law.

Proceeding to a consideration of the legal questions before us, it may be observed that money voluntarily paid is not recoverable, even though the payment was illegally exacted. Applied to the present case, that principle prevents the recovery of actual damages; certainly, then, punitive damages are not recoverable.

The general principle was well stated in the case of Kenneth & Gibson v. South Carolina R. Co., 15 Rich. 284, 98 Am.Dec. 382, where the plaintiff attempted to recover excess freight charges illegally exacted from and paid by him: "But where one man voluntarily pays money to another, it cannot be against conscience and right, that the receiver should retain it. An intelligent assent to its receipt by the payee as his own ought to estop the claim of the payer to have it restored. That cannot be said with propriety to be voluntarily done, where a formal assent thereto is induced by mistake, or procured by fraud or deception, as to facts material to control the operation of the will therein, any more than where such formal assent is extorted by the application of a force which fetters and obstructs its free working. 'I think, ' says Gibbs, J., in Brisbane v. Dacres, (5 Taunt. 143,) 'that when a man demands money of another as of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum, he never can recover back the sum he hasvoluntarily paid.' 'I think that by submitting to the demand he that pays the money, gives it to the person to whom he pays it, and makes it his and closes the transaction. He that receives it has a right to consider it his without dispute; he spends it in the confidence that it is his, and it would be most mischievous and unjust, if he, who has acquiesced in the right by such voluntary payment, should be at liberty, at any time within the statute of limitations, to rip up the matter and recover back the money. He who received it is not in the same condition. He has spent it in the confidence that it was his, and perhaps has no means of repayment.' "

For other illustrations of the application of the doctrine that voluntary payments are not recoverable, see Robinson v. City Council of Charleston, 2 Rich. 317, 45 Am.Dec. 739; City of Columbia v. Peurifoy, Receiver, 148 S.C. 349, 146 S.E. 93; Turner v. Washington Realty Co., 128 S.C. 271, 122 S.E. 768; Shockley v. Wickliffe et al, 150 S.C. 476, 148 S.E. 476.

Nor does the fact that an...