Middleton v. Atlantic Coast Line R. , 133 S.C. 23 ( 1925 )

November 23, 1925. The opinion of the Court was delivered by Action for damages resulting from alleged losses sustained by the plaintiffs on account of unreasonable delay in the transportation of various lots of cotton shipped to the plaintiffs from different parts of the State. It is a law case, pure and simple, and was referred by consent to the master of Charleston County to decide all questions of law and fact. He filed a report recommending judgment in favor of the plaintiffs for $2,895.37, without interest; this report was confirmed by decree of the Circuit Court. The defendant appealed to this Court, which, in an opinion filed February 27, 1922 (118 S.C. 351; 110 S.E., 796), reversed the judgment of the Circuit Court upon the ground that Civ. Code 1912, § 2568, upon which the plaintiffs relied to establish unreasonable delay, was applicable only to an action to recover the statutory penalty, and that in an action for damages, the plaintiffs must show by affirmative proof their allegation of unreasonable delay. A trial de novo was ordered.

Before this trial was had, the plaintiffs were allowed, by order of Court, to amend their complaint by including a demand for interest upon the losses sustained. The defendant answered the amended complaint, and, in addition to the general denial, interposed the defense that the alleged delays were due to an unprecedentedly heavy traffic at that time.

Upon the second trial before the master further testimony was introduced, and the master filed a second report, recommending judgment in favor of the plaintiffs for the same amount as before, on the basis of the difference between the market value of the cotton at the time it should have been delivered, and the market value at the time of actual delivery. He found as matters of fact: (1) That there was unreasonable delay in the transportation; (2) that the cotton was shipped with the expectation and intention of immediate sale upon delivery; (3) that it was actually sold at the time of the belated delivery; (4) that the difference between the market value at the time the cotton should have been delivered, and when actually delivered, represented the plaintiffs' loss, in the amount stated.

He held also, as a matter of fact, that the defendant had not sustained its defense of congestion of traffic, and disallowed the plaintiffs' demand for interest.

This report was confirmed in a decree of Hon. T.J. Mauldin, circuit Judge, and from this decree both parties have appealed; the defendant from so much as authorized judgment, and the plaintiffs from the disallowance of interest. It does not appear that formal judgment was entered upon the decree.

The only exception of the defendant which raises an issue of law is the third; all of the others (which will be reported) are attempted appeals from findings of fact in a law case, by the master, confirmed by the circuit Judge, and of course cannot be considered by this Court. The third exception is as follows:

"Because the presiding Judge erred in sustaining the master's recommendation that judgment be entered against the defendant when there was no testimony before the master showing what, if any, was the actual loss sustained by the plaintiffs, in that there was no testimony showing, or tending to show, the prices at which the cottons had been actually sold."

Upon the former appeal in this case, this Court held:

"Ordinarily, when goods are shipped with the expectation and intention of immediate sale upon delivery, the measure of damages is the difference between the market price on the day the goods should have been delivered and that on the day of actual delivery."

The rule is really more drastic than as above stated, which was a statement directed to the particular case. The general rule is applied regardless of the intention of the consignee to make immediate sale. See 10 C.J., 309; McKerrall v. R. Co., 76 S.C. 338; 56 S.E., 965;Nettles v. R. Co., 7 Rich., 190; 62 Am. Dec., 409; Rutland v.R. Co., 81 S.C. 448; 62 S.E., 865; Bullock v. R. Co., 82 S.C. 375;64 S.E., 234.

It is manifest therefore that the defendant had no right to insist upon proof of the actual sale price of the cotton.

We come now to consider the plaintiffs' exception to the decree, upon the ground that the circuit Judge erred in not allowing them interest upon the several items of damage established. The appeal is not in order. In the first place it does not appear that judgment has been entered upon the decree of Judge Mauldin. His decree or order, confirming the master's report, is not a judgment, for the case is one at law, and his order amounts to no more than the verdict of a jury, from which there can be no appeal.Wilson v. R. Co., 123 S.C. 399; 115 S.E., 764, and cases cited therein. In the case of Adickes v. Allison, 21 S.C. 245, the Court said:

"In an action at law, tried by the Court, we do not understand that the decision is the formal judgment in the case under the seal of the Court. It is required to be filed and ``Judgment upon the decision shall be entered accordingly.' "

See Code Civ. Proc., § 589.

If the judgment had been entered upon the order of Judge Mauldin, it would have been for the amount reported by the master, and the plaintiffs would have been in the position of appealing from a judgment in their own favor; the judgment is all that they could have appealed from.

Where in a law case the verdict (and we are now treating the order of Judge Mauldin as a verdict) is for an amount greater than the defendant conceives it should have been, his remedy is to move for a new trial, and upon that motion the circuit Judge may either order a new trial out and out, or order a new trial nisi, requiring the plaintiff at his option to remit a certain portion of the verdict or submit to a new trial. Should the circuit Judge refuse the motion, upon a legal ground, the defendant has his remedy by appeal to this Court, which may either affirm or reverse the order below. In the event of affirmance, the case is ended; in the event of reversal, the Court may remand the case, either directing a new trial or a new trial nisi. So where the verdict is for an amount less than the plaintiff conceives it should have been, the remedy of the plaintiff is exactly the same.

This Court has no power to readjust a verdict in a law case except in the manner indicated, and that is only through its power to order a new trial conditioned upon the refusal of the terms imposed. It grants a new trial nisi in favor of the defendant, unless the plaintiff should reduce the verdict, for the reason that it has no absolute control over the verdict; it cannot readjust it against the will of the plaintiff by reducing it. If it cannot reduce the verdict, it seems clear that it cannot increase it upon the plaintiffs' motion, except indirectly in the manner stated.

To sustain the plaintiffs' appeal and send the case back to the Circuit Court, with directions to include in the judgment what the plaintiffs may be entitled to, would amount to an increase of the verdict, or, what is the same, the amount found by the circuit Judge, sitting as a jury.

In James v. Morey, 44 Ill., 352, it is held (quoting syllabus in Am. Dig.):

"Where a verdict for plaintiff is for too small a sum, and he moves for a new trial on that ground, it is not error for the Court to announce that it will grant the motion, unless defendant consents to a certain increase of the amount of the verdict."

In West v. R. Co., 56 Wis. 318; 14 N.W., 292, the plaintiff appealed upon the ground that he had not been allowed interest upon the amount found due to him by the verdict. The Court held that he was entitled to interest, and, assimilating the situation to that of the defendant moving for a new trial upon the ground that the verdict was excessive, ordered a new trial, unless the defendant would stipulate within a certain time that the verdict be increased to the extent of such interest, showing that the Court had no more power to increase a verdict than to reduce it, except through the indirect method of a new trial nisi.

In Aultman v. Thompson (C.C.), 19 F., 490, upon a motion for a new trial, the Court held that the plaintiff was entitled to more than the amount of the verdict by a certain amount, and granted the plaintiff's motion nisi, requiring the defendant to consent that judgment for the excluded sum be entered against him or submit to a new trial; enforcing the same rule as is applied where the defendant moves for a new trial upon the ground of an excessive verdict.

In Gosczinzki v. Carlson, 157 Wis. 551;147 N.W., 1018, the plaintiff in an assault and battery civil case had a verdict for $70 damages; he moved for a new trial upon the ground that the damages allowed were inadequate. The trial Judge granted his motion, unless the defendant would within a fixed time file a consent that judgment be entered against him for $250. The defendant appealed. The Court held that the order was proper.

In Ford v. R. Co., 98 Minn., 96; 107 N.W., 817; 8 Ann. Cas., 902, the plaintiff had a verdict of $1 in an action for damages on account of an assault by an employee of the defendant. Upon his motion for a new trial, the Court ordered a new trial unless the defendant within a fixed time would consent in writing that the verdict be increased to $150. Upon appeal by the defendant, the Court held that the order was entirely right.

"But * * * the Court * * * may require a defendant to consent to an increase in the amount of the judgment to the amount indisputably due, on pain of granting plaintiff's motion for a new trial." 38 Cyc., 1899.

In Smith v. Ellyson, 137 Iowa, 391; 115 N.W., 40, it is held that, upon plaintiff's motion for a new trial, it could be granted upon condition that the defendant refused to make a certain modification of the verdict. In Reuter v. Hickman,160 Wis. 284; 151 N.W., 795 Ann. Cas., 1916B, 455, it is held that in granting a new trial for inadequacy of damages, whether the defendant should be given the option to allow judgment for a larger sum was within the discretion of the Trial Court.

In Gaffney v. Illingsworth, 90 N.J. Law, 490;101 A., 243, the Court said:

"The power of the Court in granting a new trial upon the ground that the damages are excessive, upon terms that a new trial shall be had unless the plaintiff will accept a certain sum named, less than that awarded by a verdict, is too well established to be questioned. It would seem to follow, by parity of reasoning that, when a new trial is granted because the damages are inadequate, the Court may impose like terms; that is, terms to the effect that, if the defeated party will pay a certain sum greater than that awarded by the verdict, the rule will be discharged."

"Where the objection that the recovery is inadequate is not raised in a motion for a new trial, it is waived and cannot be urged on appeal, and this is true although an exception is taken to the instructions on the measure of damages. Thus a judgment will not be reversed for failure to allow interest, where the omission was not made a special ground for new trial, and where through mere oversight a judgment rendered is for a less sum than the successful party is entitled to, an objection on that ground must be embodied in the motion for new trial or it will be waived." 29 Cyc., 751.

In Marsh v. Minneapolis Brewing Co., 92 Minn., 182;99 N.W., 630, the Court held that on a motion for a new trial the trial Court had the right to grant the order nisi, requiring the defendant to consent to an increase of the verdict in a damage suit from $50 to $175 or to submit to a new trial.

In Schein v. Epstin, 110 S.C. 433; 96 S.E., 905, the Court said:

"The action was an action at law, and the Judge had no right to give a judgment contrary to the finding of the jury. The decree practically sets aside the verdict of the jury, and that much his Honor had the right to do. Having set aside the verdict, a new trial followed, as a matter of course, as the only thing that could have been done."

In Gwathmey v. Hotel Co., 121 S.C. 237;113 S.E., 688, upon the defendant's motion for a new trial, the circuit Judge passed an order directing that the verdict for punitive damages be reduced to $500 and refusing the motion. The Court held that this was error, in that the plaintiff was not allowed the option of remitting that amount or of submitting to a new trial. It is there said:

"The authority of a circuit Judge to correct, modify, or interfere with the verdict of a jury in a case properly triable by a jury is embraced in and limited to the power to grant new trials."

The plaintiffs, dissatisfied with the disallowance of interest, had the right: (1) To move the presiding Judge during the term for a modification of the order upon the ground of his error in disallowing interest; this they did not do. (2) To move the presiding Judge for a new trial or a new trial nisi, during the term, and to appeal from his refusal to this Court; this they did not do.

They have not even entered up judgment upon the order of Judge Mauldin; they expect this Court to do what Judge Mauldin upon a motion for a new trial could not have done, arbitrarily increase the verdict without giving the defendant the option of increasing it or submitting to a new trial.

If they had entered up judgment upon the order and appealed from the judgment upon the ground of error in the matter of interest, this Court under the circumstances might have considered the appeal as from an order refusing a motion for a new trial, as was done in the Wilson Case, 123 S.C. 399;115 S.E., 764, but even then the most that this Court could have done would have been to have passed an order for a new trial nisi, giving the defendant the option of consenting to the increase or submitting to a new trial.

Let the master's report and the order of Judge Mauldin be incorporated in the report of the case.

The judgment of this Court is that the appeals of both parties be dismissed, and that the case be remanded to the Circuit Court for entry of judgment in accordance with the order of Judge Mauldin.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and MARION concur.