Webber v. Farmers Chevrolet Co.

• Decision Date: 01 February 1938
• Docket Number: 14610.
• Citation: 195 S.E. 139,186 S.C. 111
• Parties: WEBBER v. FARMERS CHEVROLET CO. et al.
• Court: South Carolina Supreme Court

195 S.E. 139

186 S.C. 111

WEBBER v. FARMERS CHEVROLET CO. et al.

No. 14610.

Supreme Court of South Carolina

February 1, 1938

Appeal from Common Pleas Circuit Court of Orangeburg County; M. M Mann, Judge.

Action for damages growing out of the alleged forcible, unlawful and willful seizure of an automobile by W. C. Webber against Farmers Chevrolet Company and others. From an order granting defendants' motion for nonsuit, plaintiff appeals.

Reversed and remanded.

L. A Hutson, of Orangeburg, for appellant.

Adam H Moss and James A. Moss, both of Orangeburg, for respondents.

FISHBURNE Justice.

This action was brought by the plaintiff for the recovery of damages, actual and punitive, growing out of the alleged forcible, unlawful, and willful seizure of an automobile by the defendants.

The defendants set up various defenses by their answers, and, among others, alleged that the automobile was peaceably repossessed, in accordance with the terms and provisions of a conditional sales contract or chattel mortgage, after condition broken.

Upon the call of the case, the defendants moved that the plaintiff be required to elect whether he would go to trial on a cause of action for breach of contract, or whether he would proceed on a cause of action sounding in tort. The plaintiff elected tort. Immediately following this election, the defendants then moved that he be required to state the theory of his cause of action and the nature of the tort, for the commission of which he sought damages, by stating whether his action was for a trespass against the person or for a trespass against property. Counsel for the plaintiff refused to make this election, whereupon the court construed the complaint as stating a cause of action for trespass against personal rights, and the trial thereupon proceeded on this theory.

Upon the conclusion of the testimony for the plaintiff, a motion for nonsuit was made on behalf of each of the defendants, separately, on the ground that the plaintiff had failed to allege and prove any actionable conduct on the part of the defendants, or any of them. This motion was granted, and a nonsuit ordered, but upon the sole ground that the complaint does not allege facts constituting a breach of the peace.

The plaintiff is appealing from this order.

It will be observed that the order of nonsuit was not granted because there was a failure of testimony tending to sustain the material allegations of the complaint, but is based only upon a construction of the complaint. Therefore the motion for nonsuit on the ground sustained was in effect a demurrer to the complaint. Forrest v. McBee, 72 S.C. 189, 51 S.E. 675; Rosemand v. Southern Ry., 66 S.C. 91, 44 S.E. 574.

The respondents contend that the facts of this case bring it within the rule announced in Austin v. Manufacturing Company, 67 S.C. 122, 129, 45 S.E. 135, 137. It is there said that, "The only instances in which the court will sustain a nonsuit when the allegations are sustained by the testimony are in cases where the complaint is subject to a demurrer, as in Rosemand v. R. R., 66 S.C. 91, 44 S.E. 574. In Boyd v. Brent, 1 Tread.Const. 101, it was decided that, if the declaration does not contain any cause of action, the proper way of taking advantage of it is to demur; but, where a nonsuit had been ordered, the court refused to set it aside, on grounds of convenience, as it was clear that the plaintiff could not recover. In Pettis v. Harris, 2 Brev. 388, the court ruled that a nonsuit may be ordered, though the cause be at issue before the jury, and there is evidence offered pertinent to the issue, if it be clear there is no sufficient legal cause of action stated in the declaration. See, also, Jamison v. Lindsay, 4 McCord 93."

But the foregoing rule has no application when the complaint is not subject to a demurrer; and, in our opinion, it has no application here for the reason that the complaint in this case alleges a sufficient legal cause of action.

The gist of trespass to personalty is the injury to possession. With this principle of the law in mind, we turn to the complaint.

The plaintiff alleges that he purchased a Chevrolet sedan automobile from the defendant Farmers Chevrolet Company on April 13, 1935, for $914.60, and made the initial cash payment thereon of $272; that to secure the balance of the purchase money, amounting to $642.60, he executed a conditional sales contract or retention of title contract (which the court has construed many times as being a chattel mortgage), providing for payment of the balance in installments of $35.70 per month; that he paid eight monthly installments, amounting to $285.50; that on February 26, 1936, an agent of the defendants, acting for them at their special instance and request, and in the course of his employment, called at the home of the plaintiff in the city of Orangeburg, informed the plaintiff that he was in arrears two monthly payments, and demanded the immediate payment of the total unpaid balance of the purchase money, or the possession of the automobile. That the plaintiff stated to this agent that the defendants had agreed to give him a reasonable length of time within which to meet the two past-due payments, and that he was then ready and would pay him the sum of $71.40 to cover the installments in arrears. The agent refused to accept this amount, in a harsh, inconsiderate manner, whereupon the plaintiff forbade the agent to take the car, and told him that he could not legally take it over his protest, without proceeding in a lawful way; that regardless of the efforts of the plaintiff to retain possession of the car, which was at his home and in his possession, the said agent forcibly, willfully, high-handedly, and unlawfully seized the automobile, in utter disregard of the rights of the plaintiff, and drove it away and sold it, to his damage, etc.

On demurrer, the allegations of the complaint are deemed to be true, but this rule is limited to those matters of fact only which are material and well pleaded, and to those relevant inferences reasonably deducible...