September 1, 1908. The opinion of the Court was delivered by The complaint alleges that on the 9th of January, 1906, the defendant violently assaulted the plaintiff, Eliza Jones, thereby producing a miscarriage, to her damage five thousand dollars.
The defendants interposed a general denial, and the defendant, Parker, also set up as a defense: That at the time mentioned in the complaint, he was engaged in the business of real estate agent in the city of Columbia, and as such, represented Mrs. Mamie McCreery Melton, in renting out, in his own name as agent, about twenty-five cottages, in *Page 217 what is known as "Spring Park," including the cottage known as "No. 26, Spring Park."
"That prior to the time mentioned in the complaint this defendant had rented the said No. 26, Spring Park, to one Eli Jones, and on or about January 6, 1906, there being then some eight dollars of rent in arrear, and due to this defendant, he issued his distress warrant in due form of law, addressed to E.A. Lorick, a magistrate of Richland county, authorizing and requiring him to call to his aid, such persons as might be necessary, and to enter upon the said premises, and there make distress of the goods and chattels of the said Eli Jones, for the said sum of eight dollars of rent in arrear, and due as aforesaid.
"Upon information and belief that, under said warrant, and about the time stated in the complaint, the said E.A. Lorick, calling to his aid his constable, J.A.H. Geiger, entered upon said premises, and proceeded to make said distress in a legal and proper manner, but that while so doing, the plaintiff, Eliza Jones, interferring with them in the discharge of their said duty, assaulted them," * * *.
The jury rendered a verdict in favor of the plaintiff, for two hundred and fifty dollars, against he defendant, E.W. Parker, who appealed, upon exceptions, the first of which is as follows: 1. "That his Honor erred in charging the jury as follows: `So far as they (Lorick and Geiger), are concerned, they do not plead any justification for their conduct.'
a. "In that the same is a charge on the facts in violation of the Constitution, as it assumes that the said defendants, sued as agents of appellant, had been guilty of conduct for which there should have been some justification.
b. "In that their general denial of the complaint, did plead justifications for their acts, as it denied that their acts constituted an assault, or that they were done for any purpose, other than to protect themselves from the assault of the plaintiff." *Page 218
There are a number of recent decisions to the effect, that if the presiding Judge makes a mistake, in stating the issues raised by the pleadings, it is the duty of counsel, to call his attention to such fact, in order that he may have an opportunity of correcting the same; otherwise, there is a waiver of the right to raise this question on appeal.
The second exception is as follows: "That his Honor erred in charging the jury as follows: `And if he (Parker) undertook to issue a warrant (a distress warrant) in his own name, and to Mr. Lorick, then Mr. Lorick is his agent, and he is responsible for Mr. Lorick's conduct, for everything he does, within the scope of that agency, and if Mr. Lorick acts in a high-handed, unlawful way, in undertaking to carry out the authority conferred upon him by Mr. Parker, Mr. Parker would be responsible for Lorick's conduct, so long as Lorick was acting within the general scope of his agency.'
a. "In that it was shown by the evidence that Parker was the agent for Mrs. Melton, and his Honor should have charged that Parker was not liable, if the jury found that he was the agent of Mrs. Melton, even though the distress warrant was issued in his own name.
b. "In that it charges, as an instruction to the jury, that Lorick was not responsible jointly with Parker, even though the unlawful act was actually performed by Lorick."
The facts in the case of Givens v. Steadman, 2 McM., 202, were similar to those in the case under consideration; and, in that case the Court uses the following language:
"The defendant, Givens, avows the taking, thus importing a justification in his own right, and shows the rent due to Mrs. Wigfall; and Nathans acknowledges, as bailiff of Givens, whom the avowry shows not to have been the landlord. Any agent to make a distress, is termed a bailiff. `If a man takes cattle for services due to the lord, if the lord afterwards agree to the taking, he shall be adjudged his bailiff, though he was not his bailiff in any place before.' 1 Bac. Ab. Tit. Bailiff. 6. Subsequent assent amounts to *Page 219 authority, 1 Saun., 347, n. 4. If Givens had any actual share in making the distress, and they had authority from Mrs. Wigfall, or she was willing to adopt their act, both should have justified as bailiffs. Or, perhaps, if Givens was not actually present at the taking of the distress, but had authority from Mrs. Wigfall to employ Nathans as bailiff, he might have pleaded non cepit. In that case, the authority of Nathans would have been direct from Mrs. Wigfall, and he should have justified her as her bailiff; while Givens, being merely regarded as the medium through which the authority was conveyed could not have been considered as a party to the taking."
The distress warrant, upon its fact, purported to be the act of E.W. Parker as landlord, and there was no testimony that either of the plaintiffs had notice, that it was the distress warrant of Mrs. Melton, acting through her agent, E.W. Parker; nor does it appear that the defendant, E.A. Lorick, had notice of such fact.
Under these circumstances the defendant, Parker, is estopped from claiming that he was a mere agent, in so faras the rights of the plaintiffs are involved. Long v. McKissick,50 S.C. 218, 27 S.E., 636. Furthermore, the question whether he was the agent of Mrs. Melton in issuing the warrant was submitted to the jury by his Honor, the presiding Judge.
The third exception is as follows: "That his Honor erred in charging the jury as follows: `If you find that he (Parker), issued his warrant to Lorick, and authorized him to take with him, to call to his assistance, such persons as might be needed to enforce the distress, that was not authority to appoint somebody to go without Lorick's presence; that was not authority to substitute somebody else for him.' In that he should have charged that Lorick had the right to appoint others, and they might go and perform the service without his presence."
The complaint is not for damages to the property of the plaintiffs, but for an assault and battery upon Eliza Jones. *Page 220 during which time Lorick was present throughout the difficulty. He, therefore, did not did not "appoint somebody to go without his presence," nor did he "substitute somebody else for himself," on that occasion.
The fourth exception is as follows: "That his Honor erred in charging the jury as follows: `In other words, if you were to come to my house and levy on my goods, either under distress warrant as special agent of the landlord, or if you come as sheriff of the county to levy an execution, you come into my house and say: "I levy on these things, Prince; these are levied on now; I give you notice they are levied on; I am going to leave them until I get ready to come back and get them," and go off — that is no levy.' In that under the circumstances stated the goods would be constructively levied upon and liable for the lien."
As the action is not for damages arising out of the levy, but for assault and battery, the question whether the goods were "constructively levied upon, and were liable for the lien," is immaterial.
The fifth and sixth exceptions are as follows: (5) "That his Honor erred in charging the jury as follows: `I charge you that one having a distress warrant properly issued, for past due debt for rent, must get peaceable possession of the property.' In that the law does not require that the possession of the property shall be peaceably taken."
(6) "That his Honor erred in charging the jury as follows: `He can not break the house in order to make the entry,' meaning for the purpose of levying a distress."
The appellant's attorneys have not cited any authorities to sustain these propositions, and we deem it unnecessary to cite authorities to show that they are untenable.
The seventh exception is as follows: "That his Honor erred in charging the jury as follows: `If you are wrongfully in my house and I come upon you, and then if I use *Page 221 excessive force, you must run; you must get away.' In that he should have charged the jury that a party placed in such a predicament, would have a right to use such force as was necessary to prevent the use of excessive force; he may and would have a right to protect himself from a deadly assault, as long as he used only such force as is necessary to restrain the attacking party and did not attempt to do any injury."
The entire sentence in which the charge appears is as follows: "You have not the right, because you have a distress warrant against me and against my goods, to come to my house and break locks in order to make distress, and if you do so you are doing wrong, and if I get home while you are there I can order you out, and I can use all the force necessary to put you out, and you can not act in self-defense — you have got to run; if you do me any harm, you can not plead self-defense, for you are in the wrong, if you are wrongfully in my house and I come upon you, and even though I may use excessive force, you must run; you must get away; if you slay me you can not plead self-defense; the most you can do would be to get off for manslaughter, because he who pleads self-defense must be without fault in bringing about the difficulty."
When the whole sentence is considered, it will be seen that there was no error.
The eighth exception is as follows: "That his Honor erred in charging the jury as follows: `A wife has the right to defend her husband or his goods in his home. She has a right to defend them against anybody who is undertaking to take possession of them; and if that is what she was doing, these parties had no right to assault her, if they were in the wrong in getting unlawful possession of these goods.'
a. "In that the same violated the Constitution by charging on the facts, by assuming that the agent of the defendant assaulted the plaintiff, and by assuming that the agent of the defendant had gotten unlawful possession of the goods. *Page 222
b. "In that it states that the wife, under these circumstances, has the right to defend the goods against anybody who is undertaking to take possession of them, when he should have limited the statement by saying, `anybody not authorized by law.'"
Immediately preceding the charge set out in the exception, the presiding Judge used these words: "Now, if you find that she is entitled to recover, if they were wrongfully there, or if they assaulted her without being attacked, the mere fact that she came into her own house with an axe in her hand would not justify anybody to assault her, unless she came in such a manner as to indicate an intention to use the axe on the party. In that event, if they were there and rightfully in possession of the goods under a distress warrant, why, they would have the right to defend themselves. If these parties undertook to take wrongful possession of her husband's goods, she had the right to defend her husband's goods."
As thus explained the charge was free from error.
The ninth exception is as follows: "That his Honor erred in charging the jury as follows: `Of course, if they went down there not acting under this warrant, and all that he did was to raise a disturbance, you could find against them (meaning Lorick and Geiger) and not against Parker; but if they acted as agents, within the scope of their agency, he would be responsible for whatever they were responsible for.' In that the said charge puts everything that the agents did or might have done in the scope of their authority as such, if they went to the house for the purpose of distraining under the warrant, when the law is that the principal would only be liable for acts done directly in the prosecution of the principal's business."
The charge is not quoted correctly. The presiding Judge said: "Of course, if they went down there not acting under this warrant at all, that he had issued, and raised a disturbance, you could find against them and not against Parker, but if they acted as agents within the scope of their agency. *Page 223 he would be responsible for whatever they would be responsible for."
The ruling of the Circuit Judge is sustained by the case ofWilliams v. Tolbert, 76 S.C. 211, 56 S.E., 908, in which it was held that where the power to make seizure of personal property under a chattel mortgage, after condition broken, is delegated to another, the manner of taking possession is incidental to the authority, and within the scope of the agency, and the principal is liable for any misconduct of the agent in taking possession, although he acted contrary to the instructions of his principal.
The tenth exception is as follows: "That his Honor erred in charging the jury as follows: `Now, the question I submitted to you is at the time of the levy that that warrant, if levied * * * if at that time the rent was paid, then, that was an unlawful distress, because if the rent was paid to Parker, it was Parker's duty to stop that levy, distress warrant; if he did not do it, he is responsible for any actual damage; if his failure to do it was merely inadvertence, he is only liable for actual damages, provided the agent was not guilty of any conscious wrong-doing, any conscious invasion, and did not act in any high-handed manner in making the distress, he would be only liable then for actual damages.' When he should have charged that, under these circumstances, the plaintiff would not be entitled to recover any sum whatever, as the suit was not for damages by reason of the unlawful distress, but for unlawful assault made upon the plaintiff."
The charge in the request must be construed in connection with the following words also used in the charge: "We are not here to try anything except the grievances alleged in this complaint. Eli Jones is only made party plaintiff because he is the husband of his coplaintiff, Eliza Jones; and this complaint is not brought to recover any damages for the wrongful entry of Eli Jones' home. This action is brought because of the alleged unlawful and wrongful assault upon *Page 224 Eliza Jones, wife of Eli Jones; it is for the assault and battery upon her person that this action is brought."
When the two portions of the charge are considered together, it will be seen that the exception can not be sustained.
The eleventh, twelfth and thirteenth exceptions are as follows:
(11) "That his Honor erred in refusing to charge the defendant, Parker's eighteenth request, which was as follows: `If the jury believes from the testimony that the plaintiffs are entitled to a verdict, and the testimony satisfies them that the defendant, Parker, acted for the landlord, within the scope of his authority, then the jury cannot render any verdict against the defendant, Parker.' In that under the circumstances stated the defendant, Parker, would not be liable."
(12) "That his Honor erred in refusing to charge defendants' twentieth request, which was as follows: `The defendants had a right to assume that Eliza Jones' condition of health was normal.'
(13) "That his Honor erred in refusing to charge defendants' fifteenth request, which was as follows: `A distress made in the name of the landlord, even if not made with the precedent authority, is valid by subsequent adoption of landlord.'"
The following appears in the record: "Mr. Clark: You have covered all my requests. I withdraw my requests. The Court (to Mr. Moorman): Do you know whether I have covered yours? Mr. Moorman: You have not charged one or two of my requests. The Court: It may be I did not mean to charge them, or maybe they escaped my attention. I will read these requests. Mr. Moorman: I shall not insist upon you reading them."
This shows that the appellant's attorneys waived the right to raise the question that said requests were not charged.
The fourteenth exception is as follows: "That his Honor erred in charging the jury `that if they (the defendants) consciously committed an assault on that woman, they are *Page 225 responsible for the damages,' such charge being in response to a request to charge that the defendants had a right to assume that the plaintiff was in a normal state of health."
This exception does not assign error in the charge, but its object, seemingly, is to raise the question that the twentieth request should have been charged. It is, therefore, disposed of by what has already been said.
The fifteenth exception is as follows: "That the verdict of the jury was improper. In that it held Parker responsible for the tortious acts of the agents employed by him, and did not hold them liable for their own acts."
No issue is raised by the pleadings as to the rights of the defendants between themselves. Therefore, if the appellant was liable, we fail to see in what respect his rights were prejudiced by reason of the fact that the verdict was in favor of other defendants, who may also have been liable. Battle v. Lumber Co. 72 S.C. 322, 51 S.E., 873.
The sixteenth exception is as follows: "That the verdict of the jury was contrary to the charge of his Honor and the law, by finding Parker liable and the agents who actually committed the tort not liable. In that his Honor charged in the following words: `I will tell you more that that — if the agent is not responsible, then Parker is not responsible.' When all the evidence goes to show that Parker was not present and had no hand whatever in, nor knowledge of the damage alleged to have been done until long thereafter."
The case of Williams v. Tolbert, 76 S.C. 211,56 S.E., 908, shows that this assignment of error cannot be sustained.
The judgment of the Circuit Court is affirmed. *Page 226