Surfside Development Co. v. Reynolds & Manley Lumber Co.

• Decision Date: 16 July 1957
• Docket Number: No. 17327,17327
• Citation: 231 S.C. 508,99 S.E.2d 49
• Court: South Carolina Supreme Court
• Parties: SURFSIDE DEVELOPMENT COMPANY, a corporation, Respondent, v. REYNOLDS and MANLEY LUMBER COMPANY, a corporation, and O'Dell Powell, Defendants, of whom Reynolds and Manley Lumber Company is Appellant.

Page 49

99 S.E.2d 49

231 S.C. 508

SURFSIDE DEVELOPMENT COMPANY, a corporation, Respondent, v. REYNOLDS and MANLEY LUMBER COMPANY, a corporation, and O'Dell Powell, Defendants, of whom Reynolds and Manley Lumber Company is Appellant.

No. 17327.

Supreme Court of South Carolina.

July 16, 1957.

Warren & Warren, Hampton, and McLaws & Brennan, Savannah, Ga., for appellant.

Dowling & Dowling and Harvey & Harvey, Beaufort, for respondent.

OXNER, Justice.

This action was brought against O'Dell Powell and Reynolds and Manley Lumber Company, a corporation, to recover actual and punitive damages for wilfully and maliciously entering upon plaintiff's property and cutting and removing therefrom a large number of valuable trees. It was alleged in the complaint that the actual cutting and removing of the timber was done under the supervision and direction of Powell who was acting within the scope of his employment as the agent or servant of the Lumber Company.

In separate answers filed by defendants, they denied trespassing upon plaintiff's lands and alleged that the Lumber Company bought the timber upon an adjoining tract and employed Powell as an independent contractor to cut and remove said timber. The Lumber Company further alleged in its answer that it had no control over Powell and if he cut on plaintiff's lands, it was not responsible. Powell alleged in his answer that he made a diligent effort to locate the boundaries between plaintiff's land and the tract upon which he was to cut and that if he cut any timber on plaintiff's lands, it was unintentionally done.

The trial resulted in a verdict for plaintiff for $1,600 actual damages against both defendants and $10,000 punitive damages against the Lumber Company alone.

The record discloses that when the verdict was rendered, the following occurred: 'Mr. Thomas (attorney for defendants): May it Please the Court: I want to make the usual motion. I want to reduce on the grounds that the amount found is excessive and there are no facts in this case to support the verdict and also want to make a motion to set aside the verdict, non obstante veredicto, notwithstanding the verdict and I will ask that you mark it heard and we can fix a date.'

It was agreed that the motion should be marked 'heard' and argued at a fater date. Thereafter the motion was argued at Walterboro. Counsel for defendants then stated that the grounds of his motion were 'First: That the verdict was contrary to the evidence, and Second: To mitigate the amount of the verdict.'

In an order subsequently filed the trial Judge concluded that the verdict as to punitive damages was excessive and granted a new trial unless the plaintiff remitted $2,500 of the verdict for such damages. The remission was timely made and judgment entered against both defendants for $1,600 actual damages and against the Lumber Company for $7,500 punitive damages. From this judgment the Lumber Company has appealed upon one exception, which is as follows: 'The verdict of the jury having exonerated O'Dell Powell as agent or servant from liability for punitive damages, operates also to exonerate Reynolds Manley Lumber Company from such liability, the sole act of trespass being the cutting of the trees by the agent or servant.'

It is appellant's contention that the testimony conclusively shows that the trespass, if any, was committed solely by Powell as the agent of servant of the Lumber Company and that the jury having acquitted Powell of any recklessness or wilful conduct, under the case of Kirby v. Gulf Refining Company, 173 S.C. 224, 175 S.E. 535, a verdict for punitive damages against the principal or master cannot stand.

We agree with respondent that this question was not raised in the Court below and, therefore, is not properly before us. The motion made after the rendition of the verdict is rather confusing. Apparently, it included both a motion for a new trial and a motion for judgment non obstante veredicto. If so, the latter motion was stated in rather...