Stewart v. Martin, 17407

• Decision Date: 02 April 1958
• Docket Number: No. 17407,17407
• Citation: 232 S.C. 483,102 S.E.2d 886
• Court: South Carolina Supreme Court
• Parties: Andrew J. STEWART, Appellant, v. W. T. MARTIN, Frank Melton and Virgil C. Moore, d/b/a Chester Auto Finance Company, Respondents.

Page 886

102 S.E.2d 886

232 S.C. 483

Andrew J. STEWART, Appellant, v. W. T. MARTIN, Frank Melton and Virgil C. Moore, d/b/a Chester Auto Finance Company, Respondents.

No. 17407.

Supreme Court of South Carolina.

April 2, 1958.

Hemphill & Hemphill, Fred H. Strickland, Chester, for appellant.

Hamilton & Hamilton, C. W. McTeer, Chester, for respondents.

OXNER, Justice.

This is an appeal from an order sustaining defendant's demurrer to plaintiff's complaint, the allegations of which may be briefly summarized as follows:

On November 10, 1955, a Chevrolet automobile, registered in the name of one Floyd Galloway, collided with a taxicab owned and operated by plaintiff. The collision was caused by the negligence and recklessness of the driver of the Chevrolet. Shortly thereafter the plaintiff instituted an action to recover the damages resulting from said collision and in said action procured from the Clerk of Court a warrant of attachment against the Chevrolet car, which was turned over to the Sheriff of Chester County. Virgil C. Moore, doing business as Chester Auto Finance Company, held a mortgage on the automobile. For the fraudulent purpose of preventing the sheriff from attaching said Chevrolet, Moore, through his agents and servants W. T. Martin and Frank Melton, wilfully and maliciously took the car from Galloway, removed it from Chester County, secreted it, and refused to give any information to the Sheriff of Chester County as to its whereabouts, all of which was done to deprive the plaintiff of his right to have the offending automobile attached. As a result, the sheriff has been unable to seize said automobile under the attachment.

The instant action was instituted on December 9, 1955 to recover damages sustained on account of the alleged wrongful acts of the defendants in preventing the sheriff from seizing said automobile. Plaintiff alleged in his complaint that he 'has been deprived of his rights, has been inconvenienced, has been unable to enforce his lien, has been embarrassed, has been illegally defrauded of his rights, and has been put to trouble and expense, all to his injury and damage in the sum of $15,000 damages, actual and punitive.'

The demurrer was on the ground that the complaint did not state facts sufficient to constitute a cause of action in that it did not appear that there had been any adjudication that the alleged damage to plaintiff's taxicab was caused by the negligent operation of the Chevrolet, or any judicial determination that plaintiff had a lien thereon.

The Circuit Judge construed the complaint as an action for conversion and held that such a cause of action could not be maintained until it was judicially determined by a court of competent jurisdiction that the plaintiff had a lien on said automobile.

At the outset it may be stated that we do not construe the complaint as an action for conversion, rather it is an action to recover damages resulting from the wrongful and malicious acts of the defendants in removing and secreting said Chevrolet automobile and thereby preventing the sheriff from seizing same under the attachment in his hands.

Most courts hold that a general creditor cannot maintain an action for damages against a third party for fraudulently enabling the debtor to dispose of his property to defeat plaintiff's claim. Some of these decisions are based upon the ground that any damages to the plaintiff are no different in nature from those to all other creditors, stating that if one creditor could recover, another could also and such third party might be liable several times over. Other courts rest their decisions upon the ground that the damages are too remote and speculative. The courts of Pennsylvania take a different view. The authorities are collected in an annotation in 47 L.R.A. beginning on page 433. Raymond v. Blancgrass, 36 Mont. 449, 93 P. 648, 15 L.R.A.,N.S., 976, contains an excellent discussion of the subject. We are now called upon to make a choice between these conflicting decisions, for nearly all the authorities agree that such an action may be maintained where the creditor has a lien upon, or a specific interest in, the property concealed or disposed of by such third party for the purpose of defeating plaintiff's claim.

In 86 C.J.S. Torts § 44, p. 969, our case of Michalson v. All, 43 S.C. 459, 21 S.E. 323, 49 Am.St.Rep. 857, is cited in support of the statement that 'one who impedes or obstructs another's remedy for the enforcement of a fixed and ascertained right against a third person has been held responsible for the injury thus occasioned.' In Findlay v. McAllister, 113 U.S. 104, 5 S.Ct. 401, 404, 28 L.Ed. 930, the Court said: 'The right of a judgment creditor to proceed by action against those who rescue the person of his debtor arrested on mesne or final process, or interfere with the goods of his debtor so as to prevent a levy or sale by the sheriff to satisfy his judgment, is well recognized at common law.' All of this is in accordance with the general rule that, 'A...