Staton v. Bell

• Decision Date: 11 September 1933
• Docket Number: 13690.
• Citation: 170 S.E. 666,170 S.C. 395
• Parties: STATON v. BELL.
• Court: South Carolina Supreme Court

170 S.E. 666

170 S.C. 395

STATON v. BELL.

No. 13690.

Supreme Court of South Carolina

September 11, 1933

Appeal from Common Pleas Circuit Court of Spartanburg County William H. Grimball, Judge.

Action by B. D. Staton against J. W. Bell. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Nicholls Wyche & Russell and L. G. Southard, all of Spartanburg, for appellant.

I. A Phifer and Lyles & Daniel, all of Spartanburg, for respondent.

CARTER Justice.

This action by B. D. Staton, as plaintiff, against the defendant J. W. Bell, was commenced in the court of common pleas for Spartanburg county, November, 1930, for recovery of actual and punitive damages on account of alleged "unlawful" trespass by the defendant, through his duly appointed agent, F. H. Johnson; it being alleged that the said agent unlawfully entered the home of the plaintiff in the plaintiff's absence and over the protest of the plaintiff's wife, who, according to the allegations and contention of the plaintiff, was, in the plaintiff's absence, in charge of said home for and in his behalf. Under his answer, the defendant, in the first place, interposed a general denial and demanded strict proof of the plaintiff's allegations. Further answering the complaint, the defendant, while stating, in substance, that he appointed the said F. H. Johnson, a magistrate's constable, to go and serve a distress warrant for past-due rent on the household goods of Mr. and Mrs. Chambers, who had and occupied a room or rooms in the same building occupied by the plaintiff, in the city of Spartanburg, said county, denied that the said agent committed any acts of wrong against the plaintiff or any one under his care or any one occupying the said building, but, on the other hand, alleges, in serving the said distress warrant on the household goods of the said Mr. and Mrs. Chambers, "that each and every act of F. H. Johnson's was peaceful, quiet, and gentlemanly, and so far as he was concerned, was unattended with any noise, boisterousness, or otherwise, and he merely listed the articles of furniture so that this defendant could enforce his lien for past due house rent." Further answering the plaintiff's allegations, in effect, that the said F. H. Johnson entered the said home over the protest of the plaintiff's wife and committed unlawful acts therein, causing the said Mrs. Chambers and, also, the wife of the plaintiff to become frightened and thereafter, as a result thereof, become ill and suffer therefrom, the defendant not only denied the said allegations but made the following pertinent allegations: "That if, by any act of F. H. Johnson, he was in any wise boisterous, pressing, unkind, or ungentlemanly, the same was contrary to the whole life conduct of said F. H. Johnson, and he denies that there was any such act which would cause this plaintiff any damages whatsoever, or mental suffering, but if there was such an act, then he disaffirms and disavows the same." (Italics ours.)

The defendant also served notice of motion for an order striking from the complaint certain allegations upon the ground that the same were redundant and irrelevant, to which motion we shall hereinafter advert.

Issues being joined, the case was tried at the September, 1931, term of said court, before his honor, Judge W. H. Grimball, and a jury, resulting in a verdict for the plaintiff in the sum of $1,500 actual damages and $500 punitive damages. From the said verdict and judgment thereon the defendant has appealed to this court. The allegations of error imputed to the trial judge by the appellant are presented under twenty-three exceptions, but the appellant states in his brief prepared for this Court that the questions involved are as follows:

"1. Was there error in refusal of the Presiding Judge to grant motion for nonsuit and to direct a verdict for the defendant?

"2. Did the Presiding Judge err in refusing to strike from the complaint certain irrelevant or redundant matter?

"3. Was there error in the charge of the Presiding Judge (a) upon erroneous statement of the law; (b) was the charge on the facts?"

As to the first question presented, imputing error to the trial judge in refusing to grant defendant's motions for a nonsuit and direction of a verdict, based, in the main, upon the ground that there was no testimony to be submitted to the jury which tended to show an unlawful trespass, the same must be answered against appellant's contention. Since under our view of the case there will have to be a new trial, we shall not discuss the testimony, but deem it sufficient to state that upon due consideration of the same we are of the opinion that it was the duty of the trial judge to submit the issues to the jury and that his honor committed no error in refusing the motions.

The second question above stated, presented by appellant, must also be answered against appellant's position. While, in the main, the allegations contained in the complaint with reference to the injuries alleged to have been suffered by the said Mr. and Mrs. Chambers and Mrs. Staton, for the purposes of this suit, clearly constituted irrelevant and redundant matter and could have been stricken out by the trial judge, it was, under the recognized practice in this state, largely a matter of discretion on the part of the trial judge whether he would grant the motion and undertake to separate the improper allegations from the proper allegations or refuse the motion and rule on the same on the presentation of the testimony bearing on such allegations. In this connection we call attention to the fact that while it appears that the notice of the motion to strike out called for a hearing before Judge Ramage, the motion was actually heard by the trial judge, his honor, Judge Grimball when the case was called for trial. No error is imputed to the trial judge regarding the admission of testimony, and a reading of the record in the case fails to disclose any objection on the part of the defendant when testimony was offered to establish these allegations. Having failed to make objection, it was not incumbent upon the trial judge to rule on the improper testimony. Therefore, the defendant is presumed to have waived objection to the same, and the exceptions presented to this court, imputing error to the trial judge for refusing to grant the motion to strike out, are of no avail to the defendant and the same must be...