Fredericks v. Commercial Credit Co.

The opinion of the Court was delivered by Mr. Justice StabrEr. This is an action for the recovery of damages on account of the alleged willful and unlawful taking and detention of an automobile. The complaint alleges that on or about the 16th day of November, 1925, the plaintiff became the owner of one Chevrolet automobile; that on or about the 5th day of March, 1926, the defendant Porter, acting for and as the agent of *382 the defendant Commercial Credit Company, came to her home in Columbia, and, without her consent and over her protest, seized and carried away her automobile; that the taking of the automobile by the defendants was unlawful, willful, wanton, and in utter disregard of her rights, and that the defendants in the same manner detained the automobile for many hours and converted it to their own use; and that at the time of such taking the defendants knew, or by the exercise of ordinary care should have known that the company had no right, title, or interest in the same, and that she was the sole owner thereof. The answer of the defendants denies unlawful, willful or wanton taking of the car, and alleges: That the defendant Commercial Credit Company (hereinafter referred to as the Company) took possession of the car under a chattel mortgage executed by William A. Thornton, dated November 23, 1925, in favor of Barrow-Chevrolet Company, duly recorded in the office of the Clerk of Court for Richland County, and purchased by the Company from Barrow-Chevrolet Company without any knowledge of any infirmity therein; that, the mortgage and the note secured thereby being past due and unpaid, the Company ascertained that Thornton had left South Carolina for parts unknown, and that the automobile covered by the mortgage was in the plaintiff’s possession; that during the late afternoon of March 5, 1926, J. Cockfield, a representative of the Company, requested the defendant Porter to go with him to call on the plaintiff and make demand for the delivery of the car under the terms of the mortgage; that accordingly Cockfield and Porter called at the plaintiff’s residence and stated to her that the Company had a mortgage on her automobile; that they exhibited the mortgage to the plaintiff, and that she agreed to deliver possession of the car, but told them she wished to use it that afternoon, and that, if they would return about 5 o’clock, she would deliver it to them; that about 5 o’clock they returned to her residence, and she delivered the car to them, *383 and it was stored at Harvin’s garage; that on the next morning the plaintiff’s husband, John E. Fredericks, called at the office of Hunter A. Gibbes, attorney for the Company, and that, after conversation between Gibbes and Fredericks and a telephone talk with Mrs. Fredericks, Gibbes, being assured that the plaintiff had purchased the car seven days prior to the date of the mortgage, expressed regret that it had been taken and had it delivered at the plaintiff’s residence; that the mortgage under which the defendants took possession of the automobile was apparently genuine and the Company did not know there was any question as to its validity, and that the car was taken in good faith with an honest belief that the Company had a genuine claim on it by virtue of the mortgage; and that defendant Porter is not an agent or employee of the Company, and is in no way liable to the plaintiff. During the trial of the case, motions for a nonsuit and for a directed verdict were made by the defendants and were refused. The jury rendered a verdict of $25 actual damages against both defendants, $1,000.00 punitive damages against the defendant Commercial Credit Company, and $5 punitive damages against the defendant Porter. From the verdict and judgment both defendants appeal. The main points made by the exceptions are: I. That there was no testimony tending to show that the taking of the car was unlawful. II. That the testimony fails to show that the seizure and detention of the plaintiff’s automobile were wanton or willful, so as to justify a verdict for punitive damages. III. That the Court erred in charging the jury that the plaintiff might recover damages for injury, if any, done to the automobile by the defendants, there being no testimony showing damage to the car. IV. That the finding of punitive damages against Porter for $5 and against the Company for $1,000 was unlawful. *384 I and II. We will discuss the first and second questions together. It is undisputed that on November 16, 1925, the plaintiff’s husband, John E. Fredericks, bought the automobile in question from the Barrow-Chevrolet Company, paying cash for it, and gave it to his wife as a birthday present; the car being registered with the State Highway Department in her name on that day. It is also undisputed that the defendant Company purchased from the Barrow-Chevrolet Company a mortgage, apparently executed by William A. Thornton, in favor of Barrow-Chevrolet Company, dated November 23, 1925, conveying the same car purchased by Mr. Fredericks, and recorded on December 14, 1925, and that the defendant Company at that time had no information which would lead it to question the validity of the mortgage. The car was taken under the terms of the mortgage. It was not contended in the answer or at the trial that the Company’s claim was superior to the plaintiff’s — in fact, it is conceded that the mortgage was fraudulent — but the defendants attempted to show, by way of defense, that the plaintiff consented to the taking, and that their acts were done in good faith, in reliance upon their supposed rights under the mortgage. The plaintiff’s testimony tended to show that she did not consent to the taking of the car; that on the occasion of the first visit of Porter and Cockfield to her residence, about 2 o’clock on March 5, 1926, she told Porter that her husband had paid cash for the car and had given it to her as a birthday present, that it was hers, and that he could not take it ; that he insisted that, if the numbers on the car corresponded with the numbers on the mortgage, he would have to take it; that she asked him to wait until her husband came home, which would be some time between half past 5 and 6; that she told him she had to gO' down town in the car and that he said he would let her have it till half past 5; that they then checked the numbers on the car; that after going down town *385 in the car she drove it in the driveway and took out the key; that about a quarter after 5, before her husband had returned, Porter and Cockfield came back to take the car; that she talked with Porter at the door of her home, and that he followed her into the house, where she again protested against the taking of the car; that she tried her best to keep the car until her husband should arrive, but that Porter told her there was no use to argue, and that finally, feeling there was nothing else to do, she gave him the key, or opened her hand and he took it; that Porter was not discourteous, but was “very strong” when he gave her to understand that the car belonged to the Company. The testimony of John P. Fredericks, the plaintiff’s husband, tended to show that upon his arrival at his home about 5 :30 on the afternoon of March 5, he learned that the car had been taken, and found his wife crying and excited; that he immediately telephoned Hunter A. Gibbes, attorney for the Company, who seemed very much disturbed because called at that hour, and protested against the taking of an automobile that he owned outright, had bought and paid cash for; that Gibbes stated that he had a prior claim on the car, and suggested that Fredericks call at his office the next morning if he wanted to see the claim; that the next morning he saw Gibbes, who told him he would have to prove that his purchase was ahead of the Thornton transaction, as he claimed; and that, after some argument and a telephone conversation with the plaintiff, Gibbes returned the car to the plaintiff’s home. Testimony of the defendants’ witnesses tended to show that before taking the car the Company had made unsuccessful efforts to locate Thornton and collect the debt; that prior to the taking of the automobile the Company knew that Barrow had given out a lot of fraudulent mortgages and itself had some of these mortgages, and that Barrow was committed to jail on February 15, 1926; that the defendant Porter is an -attorney at law, associated in practice with Hunter *386 A. Gibbes, attorney, to whom the mortgage was sent by the Company for collection, and, at the request of J. C. Cockfield, a representative of the Company, went with him to the plaintiff’s home to demand possession of the car; that, before Porter and Cockfield went to the plaintiff’s home, Porter ascertained from the State Highway Department that the plaintiff owned the automobile at that time but did not get information as to the date she acquired the title, and that, after talking with the plaintiff on their first visit to her home and in the interval between the first and second visits, he did not attempt to get any information from the Highway Department as to the date of her title; that on his first visit, between 1 and 2 o’ciock in the afternoon, he explained his business, and told the plaintiff he could not take the car, but could make demand for possession, and, if she did not give it up, he would have to make claim and delivery for it; that she said she wanted to go up town, and he told her she could use the car that afternoon; that she said she would like for Mr. Fredericks, who would return at 5 :30, to be there, and that he asked her to have him at the house at that time; that between 5 and 5 :30 he returned to the house, and, after some further conversation between them, she finally gave him the key to the car; that he did not take the key from her nor force her to give it to him nor make any threats against her. Porter denied that the plaintiff had told him she had paid cash for the car, or that Mr. Fredericks had given it to her as a birthday present, or that she forbade him to take it, and stated that Mrs. Fredericks voluntarily surrendered the automobile. He said also that, if he had known the date of her title, he would not have taken the car, and admitted that this date could have been obtained from the State Highway Department. The witness Cockfield testified that he accompanied Porter on both visits to the plaintiff’s home, and that she was willing for them to take the car. Testimony for the defendants also tended to show that the automobile was *387 stored on the afternoon of March 5 and returned to the plaintiff the next morning, and that it was not abused or driven while in storage. Hunter A. Gibbes testified that he was handling the mortgage for collection, and that, as soon as he became assured on the morning of March 6, 1926, that the plaintiff’s claim was superior to that of the Company, he had the car returned to her at her home. The testimony in the case was conflicting and susceptible of more than one inference. It was there fore for the jury to say whether the plaintiff consented to the taking of the car and whether the conduct of the defendants in its taking and detention was only negligent or the result of a mistake or whether it was reckless or willful. The issue was clearly made, and it is not for this Court to pass on the credibility of witnesses — that is a matter for the jury. III. The trial Judge charged the jury that they might consider as an element of actual damages any injury done to the automobile, if any, by the defendants. The record does not disclose that there was any testimony offered showing that the automobile was injured in any way while in the hands of the defendants. However, when the charge on this point is considered in its entirety, it does not appear that the error complained of was prejudicial. IV. The appellants contend that the relationship of principal and agent did not exist between the defendants, but that the alleged tortious act was committed by Porter acting in the capacity of attorney for the Company; that, if the Company suffers loss through acts of the attorney, it should have redress against him, but that such redress is impractical in this case where the punitive damages against the attorney amount to $5 and the punitive damages against the Company amount to $1,000, and that therefore the award of punitive damages in unequal amounts is unlawful. The testimony shows that Porter is by profession a lawyer, but the fact that one is a lawyer does not prevent his becoming *388 the agent of another for purposes other than the practice of his profession. There is ample testimony in this case to support a finding that Porter was the agent of the Company. Under the case of Johnson v. Railway Co., 142 S. C., 125; 140 S. E., 443, in which the point involved is ably discussed by Mr. Justice Blease, the award of greater punitive damages against the Company than against Porter does not invalidate the verdict. In addition to the questions already discussed, the exceptions raise several minor points, which we have carefully examined, and find without merit. All exceptions are overruled, and the judgment of the Circuit Court is affirmed. Mr. Ci-iiee Justice Watts, and Messrs. Justices BeEasE and Carter concur-.