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WASHINGTON v. WESTERN AUTO SUPPLY CO.

January 8, 1957

HELEN WASHINGTON, APPELLANT,
v.
WESTERN AUTO SUPPLY COMPANY, RESPONDENT.



The opinion of the court was delivered by: Oxner, Justice.

January 8, 1957.

Stated generally, the question presented by this appeal is whether a successful defendant in a claim and delivery proceeding may thereafter maintain an independent action against the unsuccessful plaintiff to recover damages for the taking and detention of the property.

On January 13, 1955, the Western Auto Supply Company, claiming that Helen Washington was in default in the payment of the balance due on certain chattel mortgages held by it, brought an action in claim and delivery to recover possession of the personal property covered by said mortgages. Plaintiff gave the required undertaking and the sheriff took possession of the property. No redelivery bond was executed by defendant. In the answer filed by her, she admitted the execution of the mortgages and the balance due but claimed that the plaintiff had agreed not to insist on prompt payment of the monthly installments and to permit her a reasonable time to catch up the installments in arrears. She further alleged that the plaintiff maliciously breached said agreement "with the sole intent of defrauding and taking" her few possessions. The prayer of the answer was that the property be returned to her or that she have judgment for its value in case return could not be had, and "for $3,000.00 damages, both actual and punitive, for the wrongful taking and withholding of the same."

The case was heard in the Civil and Criminal Court of Charleston in May, 1955. At the beginning of the trial, counsel for plaintiff moved to strike from the answer the prayer for damages on the ground that the defendant had set up no counterclaim. Counsel for defendant took the position that she had properly done so but asked in the event the Court took a different view, for permission to amend the answer so as to set up a counterclaim. The Court ruled that the answer did not contain a counterclaim and struck the prayer for damages. Apparently defendant's motion for an amendment was refused. The case was submitted to the jury solely on the question of the right of possession. The following verdict was returned: "We find for the defendant the possession of the property, or if possession cannot be had for the sum of $400.00 the value thereof."

On May 19, 1955, the defendant entered up in the office of the clerk of court an unconditional money judgment for $400.00 and costs. The plaintiff, Western Auto Supply Company, appealed to the Court of Common Pleas. Judge Henderson, the then presiding Judge of that Court, in an order filed on November 5, 1955, affirmed the judgment of the Civil and Criminal Court, stating that "substantial justice has been done." There was no appeal by defendant from the rulings made by the Judge of the Civil and Criminal Court.

On February 18, 1956, Helen Washington brought the instant action in the Civil and Criminal Court of Charleston to recover, quoting from the prayer, "$3,000.00 damages, both actual and punitive, for the wrongful, illegal, malicious and unlawful taking and withholding from the plaintiff of the aforesaid items." After setting forth in her complaint that it was determined by the judgment in the claim and delivery action that the property was wrongfully and unlawfully taken and that she was entitled to possession thereof or if possession could not be had, for $400.00 the value of the property, she alleged:

"Sixth : That plaintiff, through her attorney, on numerous occasions has made demand of the Western Auto Supply Company, through its attorneys, to comply with the judgment of this Honorable Court, to no avail.

"Seventh : That during all of this period, plaintiff who is a widow and the mother of six small children, has been deprived of these valuable and essential household items without which she and her children have been put to a great inconvenience and hardship; this deprivation has caused plaintiff actual, physical and mental strains and aggravations in order to properly clean, feed and take care of herself and her children; that the action and behavior of the defendant in unlawfully and wrongfully taking the said items and retaining the said items has been malicious and willful."

The defendant Western Auto Supply Company demurred to this complaint upon the ground that it failed to state a cause of action in that the former judgment "adjudicated all rights and duties under the facts as set forth in the complaint." The demurrer was overruled by the Judge of the Civil and Criminal Court. His order was reversed by Judge Brailsford, who was then presiding in the Ninth Circuit. From this order of Judge Brailsford sustaining the demurrer, Helen Washington has appealed.

As shown by annotation in 85 A.L.R., beginning on page 687, there is some conflict in the decisions on the question as to whether a defendant in a claim and delivery action, who has been awarded possession of the property or its value, may thereafter maintain an independent action to recover damages for the taking and detention of such property. This divergence of opinion is doubtless due to some extent to differences in the statutes involved. We think our statutes contemplate the settlement in one suit of all questions that might arise out of the unlawful taking or detention of the property and not a splitting of the cause of action for wrongful taking.

Section 10-1453 of the 1952 Code reads in part as follows:

"In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff or if it has, and the defendant by his answer claims a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff or if they find in favor of the defendant and that he is entitled to a return thereof, and may at the same time assess the damages, both actual and punitive, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding of such property."

Section 10-2516 provides:

"If the property has been delivered to the plaintiff and the defendant claim a return thereof, judgment for the defendant may be for a return of the property or the value thereof in case a return cannot be had and damages, both ...


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