Munn v. Asseff, 16909
| Decision Date | 14 September 1954 |
| Docket Number | No. 16909,16909 |
| Citation | 83 S.E.2d 642,226 S.C. 54 |
| Parties | Clyde MUNN, Respondent, v. Manuel ASSEFF, Appellant. |
| Court | South Carolina Supreme Court |
Le Roy M. Want, Darlington, D. Carl Cook, Hartsville, for appellant.
Leppard & Leppard, Chesterfield, for respondent.
This action was brought by the respondent against the appellant, Manuel Asseff, and against George Asseff, alleged co-partners, doing business as A & A Auto Supply Store, for conversion of a motor truck, for actual and punitive damages. A motion for a directed verdict was granted as to George Asseff on the ground that the evidence failed to prove him a co-partner, the business being owned solely by Manuel Asseff, herein called the appellant.
The complaint alleges that the appellant, who operated an auto wrecker service, without the knowledge or consent of the respondent, took possession of the respondent's damaged truck at the scene of a wreck wilfully, wantonly, recklessly, and unlawfully, and carried it to his place of business. It further alleges that while the damaged truck was in the possession of the appellant the battery disappeared; that appellant refused to restore the same and demanded exorbitant and unlawful towage and storage charges, which the respondent refused to pay unless the battery was replaced.
The complaint further alleges that as a proximate result of such taking and retention of the damaged truck, the respondent has first, lost trade and business carried on with the truck, and profits arising therefrom, and second, has lost the truck itself.
The answer was in substance a general denial.
It should be noted that one attorney filed the answer in this case; two others tried the case, and still three others filed the motion for a new trial, one of whom (Mr. LeRoy M. Want) now remains in the case when argued in this Court, here being joined by Mr. Carl Cook, who appears in the matter for the first time. Accordingly, mention of trial counsel does not refer to the attorneys now of record.
No demurrer nor motion to strike appear to have been interposed, nor specific denial to the complaint set forth in the answer. In the trial of the case no motion was made for a nonsuit; a motion was made and granted for a directed verdict as to actual and punitive damages as to George Asseff; a motion for a directed verdict as to punitive damages was made and denied as to appellant; no motion for a directed verdict as to appellant as to actual damages was made.
The jury returned a verdict against the appellant for $5,350 actual damages, and $500 punitive damages.
A motion for a new trial raising substantially the issues indicated by the questions submitted herein below was overruled except in the respect that a new trial was granted unless the respondent remit on the record $1850 of the actual damages awarded. The respondent remitted.
The questions raised on this appeal as taken from appellant's brief, are as follows:
1. May owner of wrecked truck maintain action for conversion against garageman after said owner has exercised free access to his vehicle on the garage premises and has failed to bring claim and delivery or other legal action to regain possession?
2. May owner refuse to pay charges of $84 by garageman who allegedly towed in wrecked vehicle without authority and then maintain action for actual damages many times that sum and which could have been prevented altogether by payment of the $84?
3. Is loss of profit an element of actual damages where, by payment of a small sum by plaintiff, there would have been no loss of profit?
4. Is a vehicle owner entitled to delivery of his vehicle without payment of storage and towing charges to garageman who performed necessary service without direct authorization?
5. Is failure to charge on extraneous matters in the testimony reversible error?
Counsel for respondent take the position that the questions which appellant would now raise are not before the Court. We are of the opinion that the objection is well taken as to questions 1, 2, 3 and 4. Circuit Rule 76 provides as follows:
'The point that there is no evidence to support an alleged cause of action shall be first made either by a motion for nonsuit or a motion...
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Winters v. Fiddie
...motion prevented trial court from granting the party's motion for a new trial based on its prejudicial remarks); Munn v. Asseff, 226 S.C. 54, 58, 83 S.E.2d 642, 643–44 (1954) (holding failure to object or otherwise challenge a jury charge precluded issues from being raised in new trial moti......
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Smith v. City of Greenville
...to an erroneous statement of the law or misstatement of the issues in the charge is waived unless thus timely made. Munn v. Asseff, 226 S.C. 54, 83 S.E.2d 642; Belue v. City of Greenville, 226 S.C. 192, 84 S.E.2d 631; Hall v. Walters, 226 S.C. 430, 85 S.E.2d 729; State v. Shea, 226 S.C. 501......
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Johnson v. Williams, 17818
...to object to the charge, when opportunity was afforded to do so, renders questions concerning it unavailable on appeal. Munn v. Asseff, 226 S.C. 54, 83 S.E.2d 642; Belue v. City of Greenville, 226 S.C. 192, 84 S.E.2d 631; Hall v. Walters, 226 S.C. 430, 85 S.E.2d 729; State v. Shea, 226 S.C.......
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Johnson v. Charleston & W. C. Ry. Co.
...do, nor did they call the trial judge's attention to the omission at the close of his charge. Code 1952, Section 10-1210; Munn v. Asseff, 226 S.C. 54, 83 S.E.2d 642; Tate v. Le Master, 231 S.C. 429, 99 S.E.2d Like reasoning leads to dismissal of appellant's contention that the trial judge s......