August 28, 1931. The opinion of the Court was delivered by
This action, commenced in the Court of Common Pleas for Florence County, June 14, 1930, was instituted by the plaintiff for the recovery of damages, actual and punitive, against the defendant in the sum of $2,500.00 "for the alleged failure to return to the plaintiff promptly, after demand therefor, the sum of Five Hundred ($500.00) Dollars that had been put up by him as a cash bond." Since the appeal involves the pleadings, and for the purpose of giving a clear understanding of the questions before the Court, we quote herewith the plaintiff's complaint.
COMPLAINT
"The plaintiff above named complaining of the defendant herein, alleges:
"I. That the plaintiff is a resident of the County of Florence, State of South Carolina, and that the defendant is a corporation organized and existing as plaintiff is informed and believes, under the laws of the State of New York, and is engaged in the City of Florence, in a general restaurant business maintaining a restaurant at the Atlantic Coast Line Passenger Station.
"II. That for several years prior to May 4, 1930, plaintiff had been in the employ of the defendant company at Florence, S.C. as the manager of its restaurant at that point and that a short time prior to May 4, 1930, the defendant attempted to transfer plaintiff to Richmond, Virginia, as the manager of its restaurant at that point, at an increase of salary of Five and No/100 ($5.00) Dollars, per week, but that due to connections that plaintiff had in Florence, he refused to transfer, and although he requested the defendant to continue him as manager at Florence, the defendant refused to do so and thereupon discontinued his services.
"III. That when the plaintiff was employed by defendant as manager of its restaurant at Florence, S.C. that plaintiff was required to post as security for the proper handling of any money that might come into his hands belonging to the defendant, the sum of Five Hundred and No/100 ($500.00) Dollars, which amount in accordance with defendant's requirements, plaintiff placed in its hands and which amount the defendant continues to hold after demand made therefor, and after plaintiff had been discontinued from its service.
"IV. That the said sum of Five Hundred and No/100 ($500.00) Dollars, was deposited with the defendant with the understanding that when, or in the event plaintiff left the defendant's service and properly accounted for all the money and property of the defendant which had come into his possession, that the defendant would immediately and promptly return the said sum of Five Hundred and No/100 ($500.00) Dollars, to the plaintiff.
"V. That upon plaintiff being relieved as manager of the defendant's restaurant at Florence, S.C. that he immediately
made account for all money and property of the defendant which had come into his possession, and that the said account was checked by the defendant and accepted as correct, and no deficit or liability existed from the plaintiff to the defendant at the time of the plaintiff's leaving.
"VI. That upon accounting to the defendant for all money and property which had come into his possession and belonging to the defendant, and upon his account being accepted as correct, the plaintiff made demand upon defendant for the said sum of Five Hundred and No/100 ($500.00) Dollars, and although the said sum was the property of the plaintiff, and he was entitled to the immediate possession and payment thereof, the defendant fraudulently and willfully with the intent to deprive plaintiff of his money, in utter disregard of his rights, refused to deliver same to the plaintiff.
"VII. That the defendant after plaintiff had accounted for all money and property placed in his possession in order to retain possession of the said sum of Five Hundred and No/100 ($500.00) Dollars, in violation of plaintiff's rights, fraudulently and maliciously fabricated a charge and accusation against the plaintiff, that the plaintiff had while in the employ of the defendant as manager of its restaurant at Florence, S.C. fed on one occasion, approximately one hundred Marines, and that he had failed to account for the receipts of feeding these one hundred men and had feloniously appropriated and stolen the money received from these men, all of which the defendant knew was false and which charge the defendant manufactured and fabricated for the purpose and with the intent of defrauding and depriving plaintiff of his money.
"VIII. That by reason of the retention of plaintiff's money by the defendant while plaintiff was out of employment due to his discharge by the defendant, plaintiff has suffered from lack of money with which to properly support his family and himself, and has been humiliated and embarrassed in his credit and business reputation.
"IX. That by reason of the fraudulent and willful retention of plaintiff's said money by the defendant after demand made therefor, and after due account had been made by the plaintiff to the defendant, and by reason of the utter willful and gross disregard by the defendant of plaintiff's rights to the said money, plaintiff has been damaged in the sum of Twenty-five Hundred and No/100 ($2,500.00) Dollars.
"Wherefore, plaintiff demands judgment against the defendant for the sum of Twenty-five Hundred and No/100 ($2,500.00) Dollars, and for the costs of this action."
In due time the defendant, by its attorney, served the following notice and answer:
MOTION TO STRIKE OUT
"To P.H. McEachin, Esq., attorney for plaintiff:
"You will please take notice that on the call of the above entitled case for trial, the defendant will move the Court for an order striking from the complaint as irrelevant and redundant the following allegations thereof:
"1. That portion of Paragraph VI, beginning with the word `Fraudulently' on line 8 thereof and ending with the word `rights' on line 9 thereof.
"2. All of Paragraph 7 thereof.
"3. All words `fraudulent and willful' in line 1 of Paragraph IX thereof.
"4. That portion of Paragraph IX thereof, beginning with the word `and' on line 4 thereof and ending with the word `money' on line 6 thereof.
"This motion will be based on the complaint, a copy of which you have."
ANSWER
"The defendant, having given notice of a motion to strike from the complaint certain matter as irrelevant and redundant, and not waiving but expressly reserving its right to make such motion and to answer anew in case said
motion, or any part thereof, is granted, answering the complaint herein:
"1. Admits the allegations of Paragraph 1 thereof.
"2. Denies each and every other allegation in said complaint contained."
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August 28, 1931. The opinion of the Court was delivered by
This action, commenced in the Court of Common Pleas for Florence County, June 14, 1930, was instituted by the plaintiff for the recovery of damages, actual and punitive, against the defendant in the sum of $2,500.00 "for the alleged failure to return to the plaintiff promptly, after demand therefor, the sum of Five Hundred ($500.00) Dollars that had been put up by him as a cash bond." Since the appeal involves the pleadings, and for the purpose of giving a clear understanding of the questions before the Court, we quote herewith the plaintiff's complaint.
COMPLAINT
"The plaintiff above named complaining of the defendant herein, alleges:
"I. That the plaintiff is a resident of the County of Florence, State of South Carolina, and that the defendant is a corporation organized and existing as plaintiff is informed and believes, under the laws of the State of New York, and is engaged in the City of Florence, in a general restaurant business maintaining a restaurant at the Atlantic Coast Line Passenger Station.
"II. That for several years prior to May 4, 1930, plaintiff had been in the employ of the defendant company at Florence, S.C. as the manager of its restaurant at that point and that a short time prior to May 4, 1930, the defendant attempted to transfer plaintiff to Richmond, Virginia, as the manager of its restaurant at that point, at an increase of salary of Five and No/100 ($5.00) Dollars, per week, but that due to connections that plaintiff had in Florence, he refused to transfer, and although he requested the defendant to continue him as manager at Florence, the defendant refused to do so and thereupon discontinued his services.
"III. That when the plaintiff was employed by defendant as manager of its restaurant at Florence, S.C. that plaintiff was required to post as security for the proper handling of any money that might come into his hands belonging to the defendant, the sum of Five Hundred and No/100 ($500.00) Dollars, which amount in accordance with defendant's requirements, plaintiff placed in its hands and which amount the defendant continues to hold after demand made therefor, and after plaintiff had been discontinued from its service.
"IV. That the said sum of Five Hundred and No/100 ($500.00) Dollars, was deposited with the defendant with the understanding that when, or in the event plaintiff left the defendant's service and properly accounted for all the money and property of the defendant which had come into his possession, that the defendant would immediately and promptly return the said sum of Five Hundred and No/100 ($500.00) Dollars, to the plaintiff.
"V. That upon plaintiff being relieved as manager of the defendant's restaurant at Florence, S.C. that he immediately
made account for all money and property of the defendant which had come into his possession, and that the said account was checked by the defendant and accepted as correct, and no deficit or liability existed from the plaintiff to the defendant at the time of the plaintiff's leaving.
"VI. That upon accounting to the defendant for all money and property which had come into his possession and belonging to the defendant, and upon his account being accepted as correct, the plaintiff made demand upon defendant for the said sum of Five Hundred and No/100 ($500.00) Dollars, and although the said sum was the property of the plaintiff, and he was entitled to the immediate possession and payment thereof, the defendant fraudulently and willfully with the intent to deprive plaintiff of his money, in utter disregard of his rights, refused to deliver same to the plaintiff.
"VII. That the defendant after plaintiff had accounted for all money and property placed in his possession in order to retain possession of the said sum of Five Hundred and No/100 ($500.00) Dollars, in violation of plaintiff's rights, fraudulently and maliciously fabricated a charge and accusation against the plaintiff, that the plaintiff had while in the employ of the defendant as manager of its restaurant at Florence, S.C. fed on one occasion, approximately one hundred Marines, and that he had failed to account for the receipts of feeding these one hundred men and had feloniously appropriated and stolen the money received from these men, all of which the defendant knew was false and which charge the defendant manufactured and fabricated for the purpose and with the intent of defrauding and depriving plaintiff of his money.
"VIII. That by reason of the retention of plaintiff's money by the defendant while plaintiff was out of employment due to his discharge by the defendant, plaintiff has suffered from lack of money with which to properly support his family and himself, and has been humiliated and embarrassed in his credit and business reputation.
"IX. That by reason of the fraudulent and willful retention of plaintiff's said money by the defendant after demand made therefor, and after due account had been made by the plaintiff to the defendant, and by reason of the utter willful and gross disregard by the defendant of plaintiff's rights to the said money, plaintiff has been damaged in the sum of Twenty-five Hundred and No/100 ($2,500.00) Dollars.
"Wherefore, plaintiff demands judgment against the defendant for the sum of Twenty-five Hundred and No/100 ($2,500.00) Dollars, and for the costs of this action."
In due time the defendant, by its attorney, served the following notice and answer:
MOTION TO STRIKE OUT
"To P.H. McEachin, Esq., attorney for plaintiff:
"You will please take notice that on the call of the above entitled case for trial, the defendant will move the Court for an order striking from the complaint as irrelevant and redundant the following allegations thereof:
"1. That portion of Paragraph VI, beginning with the word `Fraudulently' on line 8 thereof and ending with the word `rights' on line 9 thereof.
"2. All of Paragraph 7 thereof.
"3. All words `fraudulent and willful' in line 1 of Paragraph IX thereof.
"4. That portion of Paragraph IX thereof, beginning with the word `and' on line 4 thereof and ending with the word `money' on line 6 thereof.
"This motion will be based on the complaint, a copy of which you have."
ANSWER
"The defendant, having given notice of a motion to strike from the complaint certain matter as irrelevant and redundant, and not waiving but expressly reserving its right to make such motion and to answer anew in case said
motion, or any part thereof, is granted, answering the complaint herein:
"1. Admits the allegations of Paragraph 1 thereof.
"2. Denies each and every other allegation in said complaint contained."
The case was tried at the November, 1930, term of the said Court before his Honor, Judge John S. Wilson, and a jury. When the case was called, the defendant pressed the motion to strike out certain portions of plaintiff's complaint, in accord with the notice served, set forth above, which motion was refused, except as to Paragraph 8, which was ordered stricken out, the plaintiff consenting thereto. Following this ruling of the trial Judge, the defendant asked for time to answer anew in accord with the notice contained in the original answer filed in the case. This motion was overruled, and the case ordered to trial, which resulted in a verdict for the plaintiff in the sum of $500.00 actual damages and $350.00 punitive damages. The defendant's motion for a new trial being overruled, from the judgment entered on the verdict the defendant has appealed to this Court.
In considering appellant's exceptions imputing error to the trial Judge we shall adopt the well-arranged plan outlined by appellant's counsel, stating the questions raised, and shall dispose of the same in the order presented by counsel.
Question No. I. "Did the trial Judge err in refusing to strike from the complaint certain matter as irrelevant and redundant as being a mere legal conclusion on the part of the pleader?"
The exceptions upon which this question is based allege error because the trial Judge refused defendant's motion to strike out certain portions of the complaint quoted above and referred to in defendant's notice, upon the ground that the said allegations amounted merely to a legal conclusion, with no facts stated to support such conclusion. Succinctly
stated, the allegations which the defendant objected to may be summed up (quoting from respondent's brief) as follows:
1. Appellant held $500.00 of respondent's money which it agreed to return upon discontinuance of respondent's services immediately after proper checking of his accounts.
2. Respondent's accounts were checked and accepted as correct by an agent of appellant.
3. Appellant refused respondent's demand for his $500.00, knowing his accounts to be correct in every particular.
4. Appellant, with knowledge of the correctness of respondent's accounts, fabricated a charge of embezzlement against respondent in order to defraud him of his money.
5. Respondent suffered damage because of the fraudulent retention of his money by appellant.
It will be observed that the fraud alleged is not in the acquisition of money or other property but in the retention of money. In our opinion, the allegations are such as to make out the charge of fraud. The exceptions raising this question are, therefore, overruled.
Question No. II. "Did the trial Judge err in refusing to allow the defendant to file a new answer?"
In the first place, we do not understand that the appellant presented a new answer to the Court. In order to fully understand what transpired at the trial regarding this matter, we quote from the record as follows:
"The Court: I think I'll overrule your motion. I think there is enough in the complaint to hold. The question now is — you gave notice you wanted to answer, and paragraph 8th is stricken out. Do you want time to answer?
"Mr. Davis: Yes, sir, I want time.
"The Court: If you can show me you are prejudiced or surprised, I will grant you time.
"Mr. Davis: I am ready to go to trial, but I reserve the legal right to answer the complaint. I think as a matter of law I have that right, but I am not going to argue with
your Honor. I want it understood that his only allegation of fraud is with reference to a charge of feeding Marines.
"The Court: My ruling is paragraph eight is stricken out."
In view of this statement of appellant's counsel, it is clear that the trial Judge was led to believe that appellant was not insisting upon a continuance of the case for the purpose of answering anew. Counsel stated that he was ready for trial. Furthermore, granting motions for amending a pleading is largely a matter of discretion on the part of the trial Judge; and there is absolutely no showing that the appellant was in any way prejudiced by his Honor's ruling on this question. The appellant was permitted to introduce all testimony offered. In our opinion the exceptions raising this question are without merit and are overruled.
Question No. III. "Was there error on the part of the trial Judge in overruling defendant's motion for direction of a verdict?"
In our opinion, it is unnecessary to discuss the testimony introduced at the trial of the case, and quoting the same would serve no useful purpose, but deem it sufficient to state that the testimony introduced at the trial had a bearing on all the material issues raised under the pleadings and tended to establish the same; that is, under the rule, the testimony raised an issue of fact for the jury, and his Honor therefore committed no error in overruling the defendant's motion for direction of a verdict on both causes of action. However, as bearing on the question of the alleged fraudulent acts of the defendant, and furnishing, in part, a basis for the recovery of punitive damages, we quote herewith a letter written by the comptroller and officer or agent of the defendant company, and transmitted by defendant to the plaintiff:
COPY OF LETTER "The Union News Company, New York, N Y
May 19th, 1930.
"Mr. W.C. Hooper, Manager, Department of Restaurants, Building.
"Dear Sir:
"In connection with the audit of the account of former agent in charge at Florence, S.C. operation, we are advised by the A.C.L., that marine movements out of Port Royal on train 82 resulted in feeding at Florence.
"It would appear that it was not unusual for train 82 to move these marines who were fed at our Florence operation. In the connection we have advices from the General Passenger Agent, two of which are before me at this time, one under date of February 8th indicating the moving of 100 marines, the other under date of May 14th covering 101 marines.
"I see no evidence in the weekly reports that the sales covering these movements were reported and it appears to me that definite information should be had as to the failure of the former agent to report these sales. What happened to this money? We can find no reflection of these receipts in the sales reported.
"In view of the foregoing I have requested further details from the A.C.L. offices who have expressed a desire to assist me in every possible way as the Railroad Company cannot understand why our revenue at the Florence operation has been reduced so entirely out of proportion to the decline in traffic. Also the receipts for the last few weeks indicate that someone must have been holding out on sales as we are now receiving an increase substantial enough to warrant our belief that an investigation is in order so as to determine just what happened to our sales receipts in the past.
"While this investigation is being made we feel that the former agent should give us a clean story so as to expedite the audit of his account as, much as possible and enable us to make settlement at the earlist possible date.
"Please review this matter and advise me without delay.
"Very truly yours,
"Comptroller."
Question No. IV. "Did the trial Judge err in refusing to construe certain letters introduced in evidence?"
The letters involved under this question were letters received by the plaintiff from the defendant regarding the matters at issue, and they contained no legal terms which called for a construction by the Court for the benefit of the jury. The language contained in the letters was plain and simple, and therefore needed no explanation as to its meaning. It is very likely that his Honor, the trial Judge, thought the members of the jury as well qualified to understand the meaning of the letters as he was, and, being of that opinion, he properly refused to undertake to construe the same. If his Honor had undertaken to construe the language involved in those letters, he would have invaded the province of the jury and very likely been charged with charging on the facts. Furthermore, the effect of these letters depended, not merely on a construction and meaning of the language contained therein, but also upon collateral facts and extrinsic circumstances, which clearly made the issue one for the jury. SeeWatson v. Paschall, 93 S.C. 537, 77 S.E., 291; Zemurrayv. Menos, 107 S.C. 361, 92 S.E., 1039. The exception raising this question is overruled.
Question No. V. "Was there error in refusing to grant a new trial?"
The exception raising this question is overruled for the reasons which we have assigned in discussing the questions above stated.
The judgment of the Circuit Court is affirmed.
MR. JUSTICE STABLER concurs.