Southern Ry. Co. v. Swift & Co.

• Decision Date: 17 October 1930
• Docket Number: 13006.
• Citation: 155 S.E. 429,158 S.C. 307
• Parties: SOUTHERN RY. CO. v. SWIFT & CO. et al.
• Court: South Carolina Supreme Court

155 S.E. 429

158 S.C. 307

SOUTHERN RY. CO. v. SWIFT & CO. et al.

No. 13006.

Supreme Court of South Carolina

October 17, 1930

Appeal from Common Pleas Circuit Court of Calhoun County; M. L Bonham, Judge.

Action by the Southern Railway Company against Swift & Co., J. J Haltiwanger, and others. Defendants other than those named defaulted, and defendant last named withdrew his answer at the trial. From an order granting a motion for a nonsuit plaintiff appeals.

Affirmed.

Plaintiff's exceptions were as follows:

(1) That his honor erred in granting the nonsuit upon the ground that plaintiff was not subrogated to the rights of Herbert B. Davis in the cotton gin outfit, as plaintiff was primarily, and not secondarily, liable to the said Herbert B. Davis therefor, whereas he should have refused the motion, in that the primary obligation to pay for the said property rested upon the defendant C. H. Pfuntner, to whom the said property had been delivered, and not upon plaintiff, and, in case the said C. H. Pfuntner did not pay for same, then upon plaintiff by reason of its contract of carriage.

(2) That his honor erred in granting the nonsuit upon the ground that plaintiff could not maintain this action on the theory of subrogation, as the defendant Swift & Co. had been in no way connected with any negligence or fraud in connection with the misdelivery of the gin machinery, whereas he should have refused the motion, in that the evidence showed that, at the time the said Swift & Co. took its mortgage and deed, under which it claims title to the property in question, from the defendant C. H. Pfuntner, it had notice of the misdelivery and that the said C. H. Pfuntner had no title thereto.

(3) That his honor erred in granting the nonsuit upon the ground that plaintiff was not subrogated to the rights of Herbert B. Davis in the cotton gin outfit mentioned in the complaint; the error being that, under the pleadings and proof before the court, the liability of plaintiff for said gin outfit was such that, having been made to pay Davis therefor, it was entitled to subrogation to the rights of Davis therein.

(4) That his honor erred in granting the nonsuit and holding that the right to recover in this action was based solely on the doctrine of subrogation, and that the only question before the court was whether the plaintiff, Southern Railway Company, was subrogated to the rights of Herbert B. Davis by reason of the payment and satisfaction of the judgment of Davis v. Southern Railway Company, whereas he should have refused the motion for a nonsuit, in that the allegations of the complaint as a whole and the evidence submitted for the plaintiff showed that the plaintiff, Southern Railway Company, was entitled to relief for judgment against the defendant Swift & Co. for the possession of the property described in the complaint, or for judgment for the value thereof in case possession could not be had, absolutely independent of the doctrine of subrogation.

(5) That his honor erred in granting the nonsuit and in holding and ruling that the plaintiff had planted its case "flat-footed on the plea of subrogation," and that this action was brought against Swift & Co. on the doctrine of subrogation, and in further holding that the complaint could not be construed as setting up an action independent of subrogation, whereas he should have refused the motion for a nonsuit, and should have held that the allegations of the complaint as a whole and the evidence submitted for the plaintiff showed that the plaintiff, Southern Railway Company, was entitled to relief for judgment against the defendant Swift & Co. for the possession of the property described in the complaint or for judgment for the value thereof in case possession could not be had, entirely independent of the doctrine of subrogation.

Adam H. Moss and P. F. Haigler, both of Orangeburg, and Frank G. Tompkins, of Columbia, for appellant.

D. W. Robinson, Jr., of Columbia, for respondent.

CARTER J.

This action by the Southern Railway Company, as plaintiff, against the defendants, Swift & Co., C. H. Pfuntner, Improved Ginning & Seed Company, J. J. Haltiwanger, C . E. Morris, H. T. Hughes, and W. G. Peterkin, was commenced in the court of common pleas for Calhoun county, August 23, 1928, on which date service was made on the defendant Swift & Co.; service being made on the other defendant at some later date, not disclosed by the record. The suit is an action in claim and delivery for the purpose of recovering from the defendant Swift & Co. "one (1) three-seventy saw cotton gin outfit, which was in possession of the said Swift & Company, who claimed to be the owner and mortgagee thereof, and which was located at Fort Motte, S. C." The other defendants, according to the allegations of the complaint, were made party defendants because they claimed some interest in the machinery, which right of interest the plaintiff denied. The defendants Swift & Co. and J. J. Haltiwanger filed answers. The other defendants defaulted. The case was tried at the November, 1928, term of said court, before his honor, Judge M. L. Bonham, and a jury. At the trial, the defendant J. J. Haltiwanger, through his attorney, withdrew his answer, and stated in open court that he claimed no interest in the property in question. At the close of the testimony introduced on behalf of the plaintiff, the defendant Swift & Co. made a motion for a nonsuit, which motion, after hearing argument and after due consideration, his honor, Judge Bonham, granted, and issued an order to that effect, stating his reasons for granting the motion. From the order of nonsuit, the plaintiff has appealed to this court, upon exceptions which will be reported with the case.

The motion for nonsuit was based and granted "upon the ground that the complaint of the Southern Railway set up a cause of action based upon the railway's subrogation to the claim of Herbert B. Davis, and that the testimony showed that the railway company was not subrogated to the rights of Herbert B. Davis."

Did his honor, Judge Bonham, properly construe the complaint, in holding that the complaint set up no other cause of action than that through subrogation? So much of the complaint as is pertinent to this question is as follows:

"4. That on or about the 29th day of July, 1927, one Herbert B. Davis delivered to the Atlanta, Birmingham and Atlantic Railway Company, at Ben Hill, Ga., for transportation to Fort Motte, S. C., and consigned to himself, one (1) three-seventy saw cotton gin outfit together with the necessary pulleys, shaftings, belts and appurtenances thereto belonging.

"5. That on or about the 2nd day of August, 1927, the said cotton gin outfit arrived at its destination, Fort Motte, S. C., over the line of, and in the custody of the plaintiff.

"6. That on or about the 4th day of August, 1927, the defendant, C. H. Pfuntner, claiming to be the agent of the said Herbert B. Davis, and without any authority whatsoever, went to plaintiff's agent at Fort Motte, S. C., and obtained the said cotton gin outfit from plaintiff by signing a receipt therefor as follows: 'Herbert B. Davis, per C. H. Pfuntner.'

"7. That thereafter the said C. H. Pfuntner moved the said cotton gin outfit from the premises of the plaintiff and placed the same on a lot in the said town of Fort Motte, which he had bought from the defendant, W. G. Peterkin, at which place the said cotton gin outfit is now located.

"8. That since the misdelivery of the said cotton gin outfit, as aforesaid, the said Herbert B. Davis brought suit against the plaintiff for the value of the said cotton gin outfit, and did on the 6th day of April, 1928, recover judgment therefor against the plaintiff in the sum of sixteen hundred and seventy-two ($1,672.00) dollars, which judgment plaintiff has paid, and that by reason thereof plaintiff is now the owner of, and subrogated to all of the rights of the said Herbert B. Davis in the said three-seventy saw cotton gin outfit, with pulleys, shaftings, belts and all other appurtenances thereto belonging, and is therefore entitled to the possession thereof. (Italics added.)

"9. That the said cotton gin outfit is wrongfully withheld and detained by the defendant, Swift and Company, in whose possession the same now is, notwithstanding that demand has been made upon it by plaintiff for the possession thereof, and that the said Swift and Company refused, and still refuses to deliver the possession of the said cotton gin outfit to the plaintiff.

"10. That the cause of such withholding and detention of the said cotton gin outfit is by reason of a certain chattel mortgage and deed covering the same, which was given to the said Swift and Company by the said C. H. Pfuntner, who had no title thereto, all of which the said defendant, Swift and Company, had due notice before the execution and delivery of said mortgage and deed.

"11. That the said property has not been taken for any tax, fine or assessment, pursuant to statute, or seized by virtue of an execution or attachment against the property of the plaintiff.

"12. That the value of the said cotton gin outfit is sixteen hundred and Seventy Two ($1,672.00) Dollars.

"13. That the defendants, C. H. Pfuntner, Improved Ginning and Seed Company, J. J. Haltiwanger, C. E. Morris, H. T. Hughes, and W. H. Peterkin, claim some interest in the said cotton gin outfit by way of deed, mechanics lien or otherwise, all of which plaintiff denies.

"Wherefore, plaintiff demands judgment against the defendant, Swift and Company, for the delivery to it, and the possession of the three seventy saw cotton gin outfit, together with the pulleys, shaftings, belts and other appurtenances thereto belonging, which is now in the

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