Webber v. Town of Jonesville , 94 S.C. 189 ( 1913 )

March 27, 1913. The opinion of the Court was delivered by This was an action by the plaintiff against the town of Jonesville and the mayor and aldermen of the said town, the other defendants, for the recovery of the possession of about three hundred square feet of land and for actual and punitive damages for one thousand dollars. The plaintiff alleged, among other allegations, that on or about the first day of July, 1910, the defendants, against her protest and in violation of law and with intent to injure the plaintiff in her said property and humiliate her in the eyes of the community, unlawfully and with wilful disregard of the objections and entreaties of the plaintiff and of the provisions and requirements of the law, entered upon said land and procured others to enter upon the lot and aided and abetted them in so doing and forcibly took possession of about three hundred square feet of the most valuable part thereof, which was in the rear of her house, and dug up the soil, destroyed shade and other trees, and ignored her appeals and treated her with contempt and ridicule, and that the injury to her property was caused by wilful and malicious intent of the defendants to take from her the property without compensation, all of which they did negligently, knowingly and wilfully, and she asked for the possession of the property and for damages.

The answer, was a denial of the material allegations of the complaint, and the defendants, other than the town of Jonesville, alleged that they were mayor and council of the town of Jonesville, and in pursuance of their duties as officers of the town they had caused certain streets to be worked, and that all of their acts in so doing were in their official capacity and were for the improvements of the streets, and had been for the benefit and enhancement of the value of the property located on said street.

The case was tried before his Honor, Judge Sease, and a jury, at the May term of Court, 1912.

At the conclusion of the evidence, the defendant moved for a direction of a verdict as to the allegations of any cause of action for tort against the town of Jonesville, and as to allegations of wantonness and wilfulness and punitive damages as to all of the defendants. His Honor, the Circuit Judge, refused this motion, but instructed the jury:

"That as to damages, you must write a verdict in favor of the town of Jonesville; that is, the incorporated town of Jonesville, because no damages can be recovered against a town for the wilful or negligent conduct of its officers duly elected and appointed. A town is a part of the State government, and the State cannot be sued except by permission, as for a tort, nor can a town be sued except by legislative enactment for damages by reason of a tort. So you will discard that; without instructing you to write a verdict on that, you will discard that from your consideration; that is, there will be no verdict in regard to damages against the town of Jonesville."

The jury rendered a verdict against the defendants for one hundred and fifty dollars for punitive damages. Upon rendition of verdict, plaintiff's attorneys, in open Court, stated that no judgment for punitive damages would be entered against the town of Jonesville. The defendants made a motion, on the minutes of the Court, for a new trial upon the ground that there was no evidence to sustain the verdict, especially as to punitive damages; which motion was granted by his Honor to the defendants, Gault, Fairbanks, Ellerbe and Mobley, as to the verdict against them for punitive damages, but he refused to grant a new trial and set aside the verdict for the recovery of the land and as to the verdict against the defendant, John T. Scott, mayor, for punitive damages.

In the order, no mention was made as to the verdict for punitive damages against the town of Jonesville. In view of the fact that his Honor instructed the jury that they could not find a verdict for punitive damages against the town of Jonesville, and plaintiff, conceding that the judgment should not include any, and inasmuch as his Honor set the verdict aside as to all of the defendants, except Scott, as to punitive damages, and plaintiff stands ready and willing to remit them in the judgment, and plaintiff did not appeal from Judge Sease's order granting new trial, we see no reason to consider any of the exceptions made by the defendants, except those of the defendant, Scott, and the town of Jonesville, that of the town of Jonesville being those other than those as to punitive damages.

The judgment, as appealed from, being nothing but that the plaintiff is entitled to recover as against all of the defendants the land sued for and one hundred and fifty dollars damages against John T. Scott, it is unnecessary to consider any of the exceptions raised by any of the appellants except these two. The plaintiff is directed, within ten (10) days after the remittitur is sent down, to remit on the judgment the damages of one hundred and fifty dollars found against the town of Jonesville.

As to the exceptions that charge error on the part of the Court in not directing a verdict in favor of all of the defendants as to punitive damages, we see no error there, as there was sufficient testimony to carry the cause to the jury, and if there was no testimony, the action of the Court, after verdict, in granting new trial as to all of the defendants, except Scott, cured any mistake, if made, as that order only leaves judgment against Scott for punitive damages, and it remains to be seen if there was any testimony to go to the jury that he acted unlawfully or wilfully. There was testimony that the land in dispute was worked by the street hands, employed by the town of Jonesville. That Scott was mayor, and that a poplar tree was cut down by those working by the direction of Scott, and that he gave them orders to move the tree, straighten up the streets and improve them. There was evidence to show that plaintiff had title to the land in dispute and in actual possession of the same, when she was deprived of the said possession by the town. It was for the jury to say, under all of the facts of the case, whether or not, in taking possession of her property and destroying her tree under orders of Scott, it was an arbitrary attempt to deprive her of her property without due process of law, and that the fact that Scott was mayor of the town, backed by the police authority of the town, with power to give the police orders, that this did not deny to the plaintiff the quiet and peaceable enjoyment of her property guaranteed by the Constitution, and whether or not, it was not in effect, a highhanded attempt on the part of Scott to acquire the property without just compensation being made therefor, as required by the Constitution (art. I, sec. 17), and was likewise inimical to art. I, sec. 5, of the Constitution, which provides that a person shall not be deprived of his property without due process of law. The fact that Scott was an officer, did not excuse him, if he was guilty, as an individual, of an illegal attempt on his part to take the property of the plaintiff without compensation and deprive her of her property without due process of law, by oppressively ordering the street hands, subject to his orders and control, to take possession of plaintiff's property. A municipal corporation is not allowed to carry into effect an illegal act. In the case ofVesta Mills Co. v. City of Charleston, 60 S.C. 1,38 S.E. 226, and Wilkins v. Gaffney, 54 S.C. 199, 32 S.E. 299, it was held that when a municipal corporation is attempting to carry into effect an illegal act it may be enjoined if there are grounds for equitable interference.

"Punitive damages may be recovered in cases of wilful invasion of a private right, where the conduct of the offender is malicious, wanton, wilful, reckless, and where there is an utter disregard of the rights of another, or recklessness."Oliver v. Railroad Co., 65 S.C. 1, 43 S.E. 307;Bussey v. Ry. 78 S.C. 116, 58 S.E. 1015.

As to the exceptions on the question of land in dispute: The plaintiff proved title and possession of the land in dispute; there was testimony that the entry by the defendants was unlawful and wrongful and defendants failed to satisfy the jury that they had title or right of possession, and we see no reason why the verdict of the jury, on this issue, should be disturbed, as there was testimony to sustain their verdict.

The Constitution provides that, "Private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being made therefor." Art. 1, sec. 17, Constitution of South Carolina.

Sections 1343, 1392, 1393, 1985, Code of Laws, 1902, provides the authority and practice to pursue in acquiring the right and manner of condemnation and compensation, and if a town, or its officers, take possession of the land of another, without the consent of the owner, in any way than that provided by law, the taking and possession is unlawful and wrongful, and the owner of the land may recover the same. Tompkins v. Railroad Co., 37 S.C. 387,16 S.E. 149.

The exceptions charging error in granting a new trial as to the defendants, other than the appellant, Scott, on the ground that a greater burden is put upon him than was contemplated by the jury, is not tenable, as it is within the province of the trial Judge to grant a new trial in any case where several are sued and the verdict is against all or more than one, if, in his opinion, the evidence does not sustain the verdict as to some, but does as to others. He can grant it as to some, and leave it as to others.

"The liability of the defendants is joint and several, and public officers are not excluded from the rule." 38 Cyc. 463, 483; Carson v. Ry. Co., 68 S.C. 55, 46 S.E. 525;Bedenbaugh v. Ry. Co., 69 S.C. 1, 48 S.E. 53.

"Each joint trespasser against whom a joint action is brought is liable for the whole injury." Whittaker v. English, 1 Bay. 15.

"As a general principle, in cases where the defense of ``act of the State' cannot be successfully interposed, the public officer will be responsible to the injured party for his personal acts of wrongdoing, although committed by virtue of his office." 38 Cyc. 463; U.S. v. Lee, 106 U.S. 196,27 Law Ed. 171; Parks v. City of Greenville, 44 S.C. 168,21 S.E. 540.

Exceptions charging error on the part of the trial Judge in charging the jury and the admission of certain testimony over objection. These exceptions cannot be sustained, because the charge, taken as a whole, was free from error and not prejudicial to the defendants, and the testimony admitted was responsive to the issues to be submitted to the jury and was not incompetent, and prejudicial to the defendants. An examination of all the exceptions, convinces us of no error that would justify a reversal, and, therefore, all of the exceptions are overruled and judgment affirmed, with instructions to the plaintiff to remit, within ten (10) days after the remittitur reaches Circuit Court, all punitive damages found by verdict of jury against the town of Jonesville.

MR. CHIEF JUSTICE GARY concurs.