Jordan v. Hudgens , 146 S.C. 209 ( 1928 )

June 13, 1928. The opinion of the Court was delivered by This action by I.P. Jordan, plaintiff, against the defendant, W.K. Hudgens, commenced in the Court of Common Pleas of Anderson County, by service of summons and complaint, January, 1926, was for the recovery of damages for an alleged unlawful conversion of two lots of cotton owned by the plaintiff. The complaint consisted of two causes of action. Under the first cause of action, the plaintiff alleged the conversion of 20 bales of cotton, on account of which he asked judgment against the defendant for $2,143, as actual damages, and $2,500, as punitive damages, and, under the second cause of action, the plaintiff alleged the conversion of 25 bales of cotton, for which alleged act he sought $2,541.52, as actual damages, and $2,500, as punitive damages. The plaintiff alleged that the 20 bales of cotton referred to under the first cause of action were delivered to the defendant, as a pledge or security to a fertilizer debt owing by the plaintiff to the defendant, in compliance with a request of the defendant, and that the 25 bales of cotton referred to under the second cause of action were delivered to the defendant for the purpose of being stored in defendant's warehouse, which was done on the solicitation of the defendant. It is further contended by the plaintiff, as set forth in his complaint, that, notwithstanding he had not given any authority to the defendant to dispose of the said cotton, the defendant sold the said cotton, or permitted the same to be sold, "without any notice whatsoever to the plaintiff, either actual or constructive," of said sale. In addition, plaintiff's complaint contained other allegations on the charge of unlawful conversion of plaintiff's property, and alleged that defendant's acts were fraudulent, willful, and wanton.

The defendant's answer was a general denial of all of the material allegations of the complaint under both causes of action, with this affirmative defense to the first cause of action:

"(3) Defendant alleges that in the spring of 1921, at the special instance and request of the plaintiff, he sold for plaintiff 20 bales of cotton in open market for the best price obtainable, and that he faithfully and fully accounted to the plaintiff for the proceeds of said sale."

The case was first tried by his Honor, Judge Grimball, and a jury, resulting in a mistrial. The second trial was by his Honor, Judge Featherstone, and a jury, March, 1927, and resulted in a verdict for the plaintiff in the sum of $1,190.20. The defendant's motion for a new trial having been refused, from entry of judgment on the verdict, the defendant has appealed to this Court, pursuant to notice duly served, imputing error to his Honor, Judge Featherstone, in the particulars set forth under the exceptions.

Appellant has nine exceptions, but, at the hearing before this Court, Exceptions 4, 5, 7, 8, and 9 were abandoned, and, in our consideration of the appeal, we shall therefore only refer to the remaining exceptions, 1, 2, 3, and 6.

FIRST EXCEPTION "That his Honor, the presiding Judge, erred in refusing to permit the witness Guyton to testify on redirect examination with regard to certain transactions that he and others had with the defendant similar to and at the same time of that which plaintiff complains of; the error being that said testimony was relevant to explain in the testimony of said witness given at the instance of plaintiff on cross-examination, and the exclusion thereof was prejudicial to the defendant."

This exception is rather indefinite, in that it does not specifically state just what error is intended to be charged. But, waiving that objection, according to our view, the exception cannot be sustained. An examination of the transcript discloses that the exception is based upon the presiding Judge's refusal to permit defendant's witness, Guyton, to answer the question, "Who signed the draft for your cotton?" Any transaction that the witness Guyton had with the defendant as to Guyton's cotton was foreign to the issue before the Court. Guyton was not a party to the suit, and had no interest in it. We think the presiding Judge properly overruled this line of testimony.

SECOND EXCEPTION "His Honor erred in charging the jury as follows: 'Now the defendant, Hudgens, * * * contends through counsel that the 25 bales of cotton were sold with the consent of the plaintiff, and he says that in that settlement the proceeds of the cotton were applied to certain indebtedness'; the error being, first, that said portion of said charge is a charge on the facts of the case, and is, therefore, a contravention of Article 5, § 26, of the Constitution of South Carolina, 1895; second, that said statement to the jury was not an accurate statement of any allegation of the answer not of any contention of the defendant. On the contrary, the defendant contended that he received no part of the proceeds of the settlement for said 25 bales of cotton, and had nothing to do therewith."

It will be observed that under this exception appellant imputes error to the presiding Judge in two particulars, in charging on the facts and misstating the issues. An examination of his Honor's charge to the jury shows clearly that this exception cannot be sustained. The presiding Judge was endeavoring to state the issues to the jury, and, in doing so, he specifically requested counsel to call to his attention any error he might make. At the conclusion of his charge, his Honor again spoke to counsel and asked if there was anything further. Counsel for appellant answered that there was nothing further. If counsel was not satisfied that the issues were stated correctly, attention should have been called to the matter, especially when his Honor had made specific request for this to be done. The exception is therefore overruled.

THIRD EXCEPTION "His Honor erred in instructing the jury with regard to the meaning of and liability ensuing from a conversion as follows: ``And the measure of damages in a case of this character is the value of the property converted with interest thereon, and the jury may — not must — the jury may give the highest value of the property converted up to the time of the trial'; the error being that his Honor failed to instruct the jury that the value of the property as mentioned was to be ascertained as of the time of the conversion."

This charge by his Honor on the measure of damages is in accord with the recognized law of this State. See Rogersv. Randall, 2 Speers, 38. Gregg v. Bank of Columbia, 72 S.C. 458;52 S.E., 195; 110 Am. St. Rep., 633, and Sizer Co. v. Dopson, 89 S.C. 538; 72 S.E., 464.

SIXTH EXCEPTION "His Honor erred in charging the jury as follows: ``The plaintiff in his complaint, as I have already told you, alleges that this 20 bales of cotton was turned over to Hudgens as a pledge for what Jordan owed Hudgens. If that is true, Mr. Foreman and gentlemen of the jury, if the plaintiff has satisfied you of that by the greater weight of the evidence, then I charge you as a matter of law that Hudgens had no right to dispose of that cotton and to sell it without the consent of, or without notice to, the plaintiff'; the error being that his Honor therein assumes that by the terms of the pledge consent to sale was to be procured from pledgor or notice of sale was to be given pledgor, whereas the terms of said alleged pledge were in controversy."

This charge by his Honor is in accord with Section 5628, Vol. 3 of the Code of 1922, and was in response to the allegations of the complaint, and to the proof in the case.

The exceptions are therefore overruled, and it is the judgment of this Court that the judgment of the Circuit Court be, and is hereby, affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.