Spencer v. First Carolinas Joint-Stock Land Bank of Columbia

• Citation: 165 S.E. 731,167 S.C. 36
• Decision Date: 12 August 1932
• Docket Number: 13469.
• Parties: SPENCER v. FIRST CAROLINAS JOINT-STOCK LAND BANK OF COLUMBIA et al.
• Court: United States State Supreme Court of South Carolina

165 S.E. 731

167 S.C. 36

SPENCER v. FIRST CAROLINAS JOINT-STOCK LAND BANK OF COLUMBIA et al.

No. 13469.

Supreme Court of South Carolina

August 12, 1932

Appeal from Common Pleas Circuit Court of Chesterfield County; T. S Sease, Judge.

Action by J. Frank Spencer against the First Carolinas Joint-Stock Land Bank of Columbia and another. Judgment for plaintiff and defendants appeal.

Reversed with instructions.

P. A Murray, Jr., of Cheraw, and Melton & Belser, of Columbia, for appellants.

D. S. Matheson and R. E. Hanna, both of Cheraw, for respondent.

BLEASE C.J.

This was an action for damages in the sum of $10,000, $600 actual and the balance punitive. The defendants are the First Carolinas Joint-Stock Land Bank of Columbia and L. S. Gibson. The complaint did not so allege, but the record shows that Gibson, in the matters complained of by the plaintiff, was acting as agent of the "Land Bank."

The facts, upon which the suit was based, from the viewpoint of the plaintiff, were stated in the complaint as follows: "*** On, or about October 12, 1930, the plaintiff had stored in gin house, which was in the custody of G. R. Spencer, six (6) bales of seed cotton of the value of Six Hundred and NO/100 Dollars. That the defendants in a wilful, wanton, malicious, unlawful, negligent and careless manner and with an utter disregard of the rights of this plaintiff and with intent to injure this plaintiff did forcibly take into its possession by converting to their own use the said cotton, the property of the plaintiff, and did deprive the plaintiff in the above manner of the said cotton and by reason of their acts, as aforesaid, did allow the said cotton to be burned and destroyed, *** although due demand has been made on the defendants, defendants have failed and refused to pay this plaintiff." The substance of the joint answer of the defendants was to this effect: First, a general denial of the material allegations of the complaint. They set up allegations that the ginhouse was on land on which the Land Bank held a mortgage, and possession of the premises had been delivered to the Land Bank some months previous to the fire; the Land Bank acquired title to the land through a deed from the master of Chesterfield county early in October; discovering that G. R. Spencer, the former owner and mortgagor, was operating a ginnery on the premises, without the consent of the owner or the tenant in possession, on November 3, 1930, under a writ of assistance, the sheriff put Gibson, as representative of the Land Bank, in possession of the premises; the sheriff's deputy found the ginhouse locked; Gibson placed other locks on two of the doors; if cotton was stored there, it was stored without the knowledge or consent of the defendants, and, two nights after the defendants got possession of the ginhouse, it was destroyed by fire without fault on their part.

The trial judge, Hon. T. S. Sease, refused a motion for nonsuit on the part of the defendants, and a directed verdict in their favor. He held there was no basis for punitive damages. The verdict, and judgment thereon, was in favor of the plaintiff for $495.86. A motion for a new trial was refused, and the defendants, by appeal, have come to this court.

It is our view that the real issues in the appeal for our determination may be decided without a detailed statement as to the exceptions.

While the presiding judge instructed the jury both as to the law of conversion and bailment, it is our opinion that the complaint was based alone on the theory of conversion, and that bailment was not involved.

"It is the element of lawful possession, however created, and the duty to account for the thing as the property of another, that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not." 3 R. C. L. 83.

See, also, Fleischman, etc., v. Southern Railway, 76 S.C. 237, 56 S.E. 974, 9 L. R. A. (N. S.) 519; Robinson v. Southern Cotton Oil Co., 108 S.C. 92, 93 S.E. 395; Marlow v. Conway Iron Works, 130 S.C. 256, 125 S.E. 569.

The allegations of plaintiff's complaint are to the effect that the cotton was stored in a ginhouse, which was in the custody of G. R. Spencer, and that the defendants forcibly took possession of the cotton and converted it to their own use, "in a wilful wanton, malicious, unlawful, negligent and careless manner and with an utter disregard of the...