Standard Warehouse Co. v. Atlantic Coast Line R. Co.

• Decision Date: 09 July 1952
• Docket Number: No. 16647,16647
• Citation: 222 S.C. 93,71 S.E.2d 893
• Court: South Carolina Supreme Court
• Parties: STANDARD WAREHOUSE CO. v. ATLANTIC COAST LINE R. CO.

Page 893

71 S.E.2d 893

222 S.C. 93

STANDARD WAREHOUSE CO. v. ATLANTIC COAST LINE R. CO.

No. 16647.

Supreme Court of South Carolina.

July 9, 1952.

Douglas McKay, Columbia, Rosen & Horger, Orangeburg, for appellant.

Belser & Belser, J. E. Belser, Jr., Walter J. Bristow, Jr., Columbia, Julian S. Wolfe, Orangeburg, for respondent.

HENDERSON, Acting Associate Justice.

This case was tried at Orangeburg before Honorable J. Woodrow Lewis and a jury. There was a verdict in favor of the defendant. The plaintiff thereupon gave notice that it would make a motion for judgment notwithstanding the verdict, and if such motion should not be granted, then for a new trial. Thereafter the motion was argued before the Circuit Judge. The eighth ground was that this 'being primarily an equity or chancery case, for a mandatory injunction and to prevent a multiplicity of suits, it was and is the function of the Court to decide all issues and particularly the issue of liability and the amount of the liquidated damages independently of the findings of a jury.'

Judge Lewis issued his order dated May 30, 1951, in which he held that the cause of action was essentially and primarily one in equity and not for the determination of a jury. He granted a mandatory injunction against the defendant as prayed for in the complaint. He also gave judgment for the plaintiff for $36,988.64 actual damages, and $1,000 for each month elapsing between the date of the decree and the reconstruction of the drainage system.

The defendant has appealed from the judgment, and in several of its exceptions raises the point that the action is not one purely in equity, but that the pleadings also raise a legal issue which was determined by the jury's verdict, and that consequently the trial Judge was in error in disregarding it and in holding that it was merely advisory to him as Chancellor; and in giving judgment against the defendant.

It will therefore be clearly seen that the decisive point in the case is whether the action is one purely in equity, or whether on the other hand it is one which embraces a legal issue as well.

In order to determine this we must carefully examine the pleadings. There are three causes of action set forth in the complaint, stating three theories upon which the plaintiff seeks to establish liability, but asking for only one recovery. In the first cause of action it is said that the defendant, by means of its drainage system along its right of way, collected surface waters in time of storm, especially in September, 1945, and in September 1948, and discharged them upon the plaintiff's property in concentrated form from an open gap in its drainage pipe, flooding the warehouse. In the second cause of action the plaintiff repeats all of the allegations of the first one, and alleges that the defendant constructed its railroad cut and embankment and its drainage system in a negligent and reckless manner, so as to discharge surface water in concentrated form, and to cause them to back up on the lands of the plaintiff; and also that it diverted a natural watercourse, or a canal which had been substituted therefor, and known as Crystal Branch, by enclosing it in inadequate pipes. In the third cause of action the plaintiff repeats all of the allegations of the other two, and says that by reason of the construction and maintenance of the roadbed, consisting of the cut and fill, and the inadequate drainage system, the defendant has constituted a nuisance which has caused damage to the plaintiff's property.

In each one of the causes of action the plaintiff says that the acts of the defendant were deliberate and wilful and in wanton and total disregard to the property and other rights of the plaintiff; that as a result of such wilful and wanton acts on the part of the defendant the plaintiff's property and warehouse business has been seriously injured and damaged and continues to suffer injury and damage; that the plaintiff has been put to great trouble and expense, entailing expenditures both in time and money, in attempting to protect itself and its property from the surface waters cast upon its property, and from the damage resulting therefrom; that as a result of the injury and damage to the property of the plaintiff by the surface waters so cast upon it, plaintiff has sustained great loss; and that as a result of the wilful, wrongful, and unlawful acts of the defendant the plaintiff has been injured and damaged in an amount of $112,000 actual and punitive damages. The plaintiff also alleges that it is entitled to a mandatory injunction restraining and enjoining the defendant from casting the surface waters upon its property, and ordering and directing it to construct an adequate drainage system to carry away such surface waters, and to abate and remove the nuisance.

The answer of the defendant denies the allegations of the complaint, and alleges that its drainage system is adequate; that if the plaintiff's warehouse was flooded it was caused by other agencies than the defendant, and not due to any negligence or wilfulness on its part; that any loss suffered by the plaintiff caused by the flooding of surface waters was the result of unusual and extraordinarily heavy rains, and that they were providential and constituted acts of God. The answer also contains the defense of contributory negligence and wilfulness on the part of the plaintiff.

This case is one in which the plaintiff seeks to establish a private nuisance, and asks for actual and punitive damages and for an injunction abating the nuisance. Brandenburg v. Zeigler, 62 S.C. 18, 39 S.E. 790, 55 L.R.A. 414; Foreman v Augusta-Aiken Railway & Electric Corp., 115 S.C. 400, 105 S.E. 893; 46 C.J. 698 and 727. We do not think that it is one of purely equitable cognizance, or that the damages claimed are merely incidental to the main relief sought, but that on the other hand the primary object of the suit is to gain actual and punitive damages, and an injunction is desired in the event the plaintiff should succeed in obtaining damages.

Under our code practice legal and equitable issues and and rights may be asserted in the same complaint, and legal and equitable remedies and relief afforded in the same action. In such even the legal issues are for determination by a jury, and the equitable issues, of course, for the judge sitting as chancellor. Henderson v. Rice, 160 S.C. 307, 158 S.E. 258; Keenan v. Leslie, 79 S.C. 473, 60 S.E. 1114. The legal and equitable issues should be separated, and each tried by the appropriate branch of the Court. Holliday v. Hughes, 54 S.C. 155, 31 S.E. 867.

Some years ago the principle was laid down in the case of Kennerty v. Etiwan Phosphate Company, 17 S.C. 411, that generally in an action for a private nuisance a finding of fact by the jury on the law side of the court was was necessary before the Court could grant an injunction, except in cases of a nuisance per se. However, that rule does not conform to modern practice, and there are many instances where an injunction may be issued by the equity court without a verdict of a jury being first had. Among instances of this kind are Fraser v. Fred Parker Funeral Home, 201 S.C. 88, 21 S.E.2d 577; Young v. Brown, 212 S.C. 156, 46 S.E.2d 673; Carter v. Lake City Baseball Club, 218 S.C. 255, 62 S.E.2d 470, and other situations not here necessary to be mentioned.

In the present case, however, where an injunction is not the primary relief sought, but where the main purpose is to secure money damages, and where all allegations of damages and the existence of facts which plaintiff relies upon to establish the nuisance are denied in the answer, and where the plaintiff also seeks punitive damages, we think that there is presented a legal issue as well as an equitable one. Punitive damages cannot be awarded by the Court in the exercise of its chancery powers. Welborn v. Dixon, 70 S.C. 108, 49 S.E. 232; Bratton v. Catawba Power Company, 80 S.C. 260, 60 S.E. 673.

Where a case contains both legal and equity issues, it is discretionary with the trial Judge as to which shall be tried first, and ordinary that one is tried first which is more likely to aid in deciding the entire controversy. In the present case it seems clear that the logical course would be to try the legal question first, since if the facts do not show the existence of a nuisance and warrant a verdict for damages in favor of the plaintiff, it would not be entitled to...