Rhode v. Ray Waits Motors

• Citation: 223 S.C. 160,74 S.E.2d 823
• Decision Date: 24 February 1953
• Docket Number: No. 16720,16720
• Parties: RHODE v. RAY WAITS MOTORS, Inc. et al.
• Court: United States State Supreme Court of South Carolina

Page 823

74 S.E.2d 823

223 S.C. 160

RHODE v. RAY WAITS MOTORS, Inc. et al.

No. 16720.

Supreme Court of South Carolina.

Feb. 24, 1953.

Meyer, Goldberg & Hollings, Charleston, for appellants.

Bailey & Buckley, Charleston, for respondent.

BAKER, Chief Justice.

The respondent brought this action against the appellant to recover actual and punitive damages for the alleged wrongful act of the appellant in taking from the respondent a Pontiac automobile which the latter claimed to have bought from the appellant. The appellant answered denying generally the allegations of the complaint that are material in this controversy.

The complaint alleges that the appellant is a corporation engaged in the business of selling automobiles in the City of Charleston and then proceeds as follows:

"Second: The plaintiff is the owner and is entitled to the immediate possession of one light green 1951 Pontiac Four Door Sedan Deluxe, Motor No. MW8UH18467, Serial No. being the same as the Motor No., together with all accessories, including a radio and heater, which automobile is wrongfully, maliciously, willfully and unlawfully detained by the defendant, Ray Waits Motors, Inc.

"Third: The plaintiff has demanded of the defendant that it deliver possession of her said automobile to her, and the said defendant has intentionally, wrongfully, maliciously, willfully and unlawfully detained and still does intentionally, wrongfully, maliciously, willfully and unlawfully detain the same, and has refused and still refuses to deliver the same to the plaintiff, and has deprived the plaintiff and still deprives the plaintiff of the use thereof.

"Fourth: The value of the plaintiff's automobile is two thousand, six hundred twenty and 11/100 ($2,620.11) Dollars."

The prayer of the Complaint is as follows:

"Wherefore, plaintiff prays judgment against the defendant, Ray Waits Motors, Inc., for the possession of her said automobile or, if possession thereof cannot be had, then for the value thereof, to wit, the sum of two thousand, six hundred twenty and 11/100 ($2,620.11) Dollars, and for damages, actual and punitive, for the unlawful detaining of and damages and injury to the said automobile by the defendant, Ray Waits Motors, Inc., and for depriving the plaintiff of the use thereof, in the sum of fifty thousand ($50,000.00) Dollars, together with the costs of this action, and for such other and further relief as to the Court may seem proper in the premises."

The case proceeded to trial on these pleadings, before the Circuit Court and a jury, and resulted in a verdict in favor of the respondent as follows:

"We find for the plaintiff actual damages in the amount of Two Thousand six hundred and twenty dollars and eleven cents."

Upon the conclusion of the plaintiff's case, the appellant moved for a nonsuit, which was refused, and upon the conclusion of the testimony the appellant moved for a direction of verdict. This was refused. Upon the coming in of the verdict, the appellant made a motion for judgment non obstante veredicto. This motion likewise was refused.

After the trial of the case had been entered upon there arose a debate between counsel for the respective litigants as to the nature of the action. On behalf of the respondent it is contended that the action is one for conversion. Counsel for the appellant contend that the action is one in claim and delivery. The trial Judge ruled with the respondent on this issue.

In any event, the pleadings of the respondent do not include the affidavit required by Section 10-2503 of the Code of 1952, or the requisition required by Section 10-2504, or the bond required by Section 10-2505, if she desired to require immediate delivery.

As above shown, the verdict of the jury does not accord with the requirements of a verdict in claim and delivery cases, whereas it does conform to the requirements of a verdict in an action for conversion. See Wilkins v. Willimon, 128 S.C. 509, 122 S.E. 503. Counsel made no comment on the form of the verdict when it was published.

We find it unnecessary to deal at length with this phase of the controversy because counsel on both sides tried the case as one for conversion, and the trial Judge charged the jury in the same light rather than as an action in claim and delivery.

Regardless of the foregoing, it is immaterial in this case what the characterization of the action may be. To the extent that it purports to be an action to recover the possession of the car, it partakes of the nature of an action in claim and delivery; in so far as the action may be deemed one solely for damages for conversion, it resembles an action for conversion. Reynolds v. Philips, 72 S.C. 32, 51 S.E. 523. Punitive damages are appropriate in either form of action. And, of course, there is no reason why the two actions could not be combined in the same suit, either jumbled in a single cause of action, or presented in separate causes of action. Ibid.

In the above light, we proceed to a consideration of the question whether, under the facts of this case, the respondent made out a cause of action for the recovery of damages for the unlawful taking of the automobile from the respondent.

Prior to September 7, 1951, the respondent was the owner of a Chevrolet car. She had in mind the purchase of a new car and was giving consideration to either a new Chevrolet or a Pontiac. With this in mind she contacted one George Fata who operated a filling station and also dealt in used cars. The place of business of Fata was very close to the place where the respondent worked and the respondent became acquainted with Fata through the purchase of gasoline and oil from the latter, and from having her car serviced there. She had known him only a few months.

Fata offered to procure for the respondent a new Pontiac car of the model and color which she desired and to take the Chevrolet car in trade. He gave the respondent the figure of $1600 as the amount that he would allow for the Chevrolet and told her that he would buy the Pontiac for her at a price substantially below the normal selling price of the car. The usual selling price was in excess of $2600. He indicated to respondent that he would procure the Pontiac car for her for about $2400, crediting this purchase price with the $1600 which he agreed to allow for the Chevrolet.

At the time these discussions were going on Fata did not have in mind any particular place where he would obtain the Pontiac.

Upon the inducements above stated, the respondent delivered her Chevrolet car to Fata. This was on or before September 6, 1951. Fata, on September 7th, sold the Chevrolet for $1310 and appropriated the money to his own use.

On September 10th, Fata learned that the appellant had some Pontiac cars available for sale. Appellant was agent for the Pontiac car. After making some inquiries as to the price of the cars and whether, as a used car dealer, he could get a discount, Fata communicated with the respondent and suggested that she go to the appellant's place of business to inspect the vehicles. This she did, being accompanied by one of Fata's employees.

In the course of the trip of respondent to the appellant's place of business Fata's employee indicated to her that she was not to be surprised if she was referred to, in any discussions with the appellant's staff, as Mrs. Fata. It was explained to her that Fata would be able to get a better price on the Pontiac if it was understood that the purchase was being made for Fata's wife.

It is the custom of the trade, relating to the sale of new automobiles, that the dealer will not ordinarily sell a new vehicle to a used car dealer, or indeed to any one else for resale. Fata knew this. He therefore contrived the scheme of representing to the appellant that the respondent was his wife, and that the purchase of the Pontiac was being made for her. This scheme was explained by him to his employee who in effect communicated it to the respondent when they were going to appellant's place of business to inspect the cars.

The respondent found at appellant's place of business a Pontiac car of the kind she desired and she so reported to Fata. During the conversation with appellant's salesmen, she was addressed as Mrs. Fata on at least two occasions. She denied making any specific representation on her own part, but did not deny that ap...