The opinion of the court was delivered by: Legge, Justice.
August 8, 1956.
These cases arose out of a collision in Marlboro County on September 25, 1952, between a Ford automobile alleged by the plaintiff to have been owned by it at that time, and a Chevrolet truck belonging to K.B. Hodges, now deceased, which was being driven by the defendant Campbell.
In the first case the trial judge, Honorable J. Martin, Jr., denied plaintiff's motion for directed verdict and submitted the issues to the jury, which found for the defendant. Thereafter plaintiff moved for judgment n. o. v. or, alternatively, new trial; and the appeal is from the order denying that motion.
In the second case the appeal is from an order of Honorable J. Woodrow Lewis, Judge of the Sixth Circuit, dismissing the action as barred by the judgment in the former.
Plaintiff (hereinafter referred to as Clanton) operates a wholesale automobile auction market in Darlington County. On September 4, 1952, it sold the Ford automobile in question to Harmon Motor Company, of Raleigh, North Carolina. Thereafter, it having been rumored that the car had been stolen prior to Clanton's acquisition of it, Clanton arranged by telephone to repurchase it from Harmon, and the latter agreed to redeliver it to Clanton on the next trip that one of its employees should make to the Clanton market. It was on this trip that the collision occurred. The automobile was demolished. Later, it developed that the rumor as to its having been stolen was false.
"1. That they deny each and every allegation in said complaint contained, except so much as may be hereinafter specifically admitted, qualified or explained.
"2. Admit the allegations of paragraph one (1) of the complaint (i. e. corporate existence of plaintiff, residence of defendants, and qualification of the personal representatives).
"3. Admit so much of the allegations of paragraph 2 (2) as allege that on or about the 25th day of September, 1952, a Ford automobile was being driven west along South Carolina Highway No. 34 in Marlboro County, and that the same was involved in an accident with a Chevrolet truck, the property of K.B. Hodges, since deceased, but the remaining portions of said allegations are specifically denied.
"4. That the allegations of paragraphs three (3), four (4) and (5) (i. e. allegations of negligence on the part of the truck driver, and of damage to plaintiff's automobile) are denied, and defendants deny, on information and belief, that the Ford automobile is, or was, the property of the plaintiff."
In addition, defendants pleaded contributory negligence. Upon the trial the plaintiff introduced in evidence the bill of sale under which it had originally acquired the automobile, the bill of sale dated September 4, 1952, under which it had sold it to Harmon, and its cancelled check for $1,335.00, dated September 26, 1952, which it had given to Harmon in its repurchase.
The trial judge refused plaintiff's request that a special verdict be found on the issue of ownership. Instead, he charged the jury that they must first determine the question of ownership and that, if they should find that the plaintiff owned the automobile at the time of the accident, they should then proceed to consider the issue of negligence.
The jury having found for the defendants, plaintiff moved for judgment n. o. v., or, failing that, for a new trial, upon the following grounds:
1. That the verdict was without evidentiary support;
2. That the trial judge erred in refusing to instruct the jury to find a special verdict on the issue of ownership of the automobile; and
3. That the trial judge erred in submitting the issue of ownership to the jury because (a) the defendants had not alleged who owned the automobile if the plaintiff did not own it, and (b) defendants' denial of plaintiff's ownership had been ...