Boiled down to its last analysis, the net results of the contracts between the defendant Company and the Barrow-Chevrolet Company, and between the defendant Company and the plaintiff Mrs. Fredericks, are that the defendant Company has been victimized by the Barrow-Chevrolet Company to the extent of $660, and has been subjected to a judgment of $1,025 in favor of the plaintiff Mrs. Fredericks, for what appears to me to have been a perfectly reasonable and honest exercise of what they considered a bona fide claim of right, though a mistaken one. The last-named result, under the circumstances, I do not think should be sustained by this Court.
The facts which developed a deliberate scheme of fraud on the part of the Barrow-Chevrolet Company, are these:
On November 23, 1925, one W.A. Thornton, whose connection with the Barrow Company is not made clear, but who appears to have been the "dummy" in the business, executed to that Company a purchase-money note and mortgage for $636, covering a sedan automobile. The mortgage was recorded *Page 389 on December 14, 1925, in the proper office in Columbia. The purchase price was payable in monthly installments beginning in December, 1925.
Shortly after the recording of the mortgage it and the note were assigned for value to the defendant Company, which began in December, 1925, to attempt collection of the installments as they fell due, but without success. In March, 1926, the defendant put the papers in the hands of Hunter A. Gibbes, Esq., a most reputable attorney of the Columbia bar, who made every effort to locate the mortgagor Thornton, who it appears had fled to the State of Florida. He learned from the State Highway Department that the car was in the possession of the plaintiff Mrs. Fredericks. On March 5, 1926, J. Cockfield, an agent of the defendant Company, with the defendant F.S. Porter, an attorney in the office of Hunter A. Gibbes, Esq., went to the home of the plaintiff for the purpose of seizing the car under the Thornton mortgage. They exhibited the mortgage to her and with her checked up the numbers on the car, identifying it as the car covered by the mortgage. Mr. Fredericks was not at home at the time and Mrs. Fredericks requested Cockfield and Porter to leave the car with her and return about 5 p. m. that afternoon, which they consented to do At 5 p. m. they returned and demanded possession of the car; Mrs. Fredericks offered no resistance, and delivered the keys to Porter. The car was unlocked and taken by Cockfield and Porter. About 10 o'clock the next morning, March 6th, Mr. Fredericks, husband of the plaintiff called at the office of Mr. Gibbes. In an interview between them Mr. Gibbes became satisfied from a phone conversation between Mr. and Mrs. Fredericks that Mr. Fredericks had purchased the car from the Barrow people on November 16, 1925, for cash, and given it to his wife, seven days before the date of the Thornton mortgage. He immediately expressed regret that the car had been seized; that it was a mistake due to the rascality of the Barrow Company; and immediately *Page 390 phoned to the garage where the car was stored to return the car to Mrs. Fredericks, which was done in a few minutes.
It is conceded that the claim of the plaintiff was superior to the right of the defendant Company under the Thornton mortgage. The Company therefore had no right to seize the car, and was responsible as a trespasser for doing so. The disputable point in the case was whether the seizure was made under circumstances warranting the infliction of punitive damages. The plaintiff admitted that the conduct of Cockfield and Porter was entirely free from offense; that Porter was courteous but firm. She was allowed to keep the car during the afternoon until some time about 5 o'clock, and the next morning, as soon as Mr. Gibbes was informed of the true status of the respective claims, the car was promptly returned. That the seizure was directed by Mr. Gibbes, under a bona fide belief in the right of the defendant Company, and without circumstances of fraud, force or even discourtesy, no one who knows him could entertain a doubt.
The only circumstance which could be considered at all blameworthy in the whole transaction is that Porter, in tracing the car, could have found out from the same source which helped him to locate it, the date of the transfer from Barrow to Mr. Fredericks, November 16th. It must be admitted that this is information which he could have obtained; but his failure to do so was no more than negligence. Taken in connection with the prompt recognition by Mr. Gibbes of the situation, I cannot appreciate the justice of mulcting the already victimized Company in $1,000 punitive damages for holding the car 17 hours.
"Exemplary damages may be recovered whenever it appears that defendant's taking of the property was characterized by malice, oppression, or a wanton disregard of the owner's rights, but not against one taking under a bona fide claim of right." 38 Cyc., 2104, citing Vine v. Casmey,86 Minn., 74; 90 N.W., 158. Jones v. Rahilly, *Page 391 16 Minn., 320 (Gil., 283). Pennington v. Redman, 34 Utah, 223;97 P., 115.
"And so one is not liable for exemplary damages, if he acts in good faith, under an erroneous sense of duty or right, without any intention to oppress or defraud or without any actual oppression or indignity." 8 R.C.L., 592.Philadelphia, W. B.R. Co., v. Hoeflech, 62 Md., 300; 50 Am. Rep., 223. Louisville, N. G.S.R. Co. v. Guinan, 11 Lea, 98 (Tenn.); 47 Am. R., 279. Jopling v. Waterworks,70 W. Va., 670; 74 S.E., 943; 39 L.R.A. (N.S.), 814. Anderson v. Sloane, 72 Wis. 566; 40 N.W., 214; 7 Am. St. Rep., 885; note, 27 Am. Dec., 686. Best v. Allen,30 Ill., 30; 81 Am. Dec., 338.
"In the latest edition of Sutherland on Damages, Vol. 2, p. 1093, § 393, in discussing exemplary damages, it is said: `If a wrong is done willfully — that is, if a tort is committed deliberately, recklessly or by willful negligence, with a present consciousness of invading another's rights or of exposing him to injury, an undoubted case is presented for exemplary damages. * * * These damages are allowable only when there is misconduct and malice, or what is equivalent thereto.A tort committed by mistake in the assertion of a supposedright, or without any actual wrong intention and without such recklessness or negligence as evinces malice or conscious disregard of the rights of others, will not warrant the giving of damages for punishment, where the doctrine of such damage prevails.'" Gwynn v. Tel. Co., 69 S.C. 434;48 S.E., 460; 67 L.R.A., 111; 104 Am. St. Rep., 819.
"The case of Gwynn v. Tel. Co., 69 S.C. 434; 48 S.C. 460; 67 L.R.A., 111; 104 Am. St. Rep., 819, is authority for the proposition that `a tort, committed by mistake in theassertion of a supposed right, or without any actual wrong intention, and without such recklessness or negligence as evinces malice or a conscious disregard of the rights of others, will not warrant the giving of damages for punishment.'" *Page 392 Funderburg v. R. Co., 81 S.C. 141;61 S.E., 1075; 21 L.R.A. (N.S.), 868.
"As to the exemplary damages, it is said in Gwynn v. Tel.Co., 69 S.C. 444 [48 S.E., 460; 67 L.R.A., 111; 104 Am. St. Rep., 819]: `An act based on the belief that it was legal and done for the sole purpose of protecting actor's right will not subject actor to punitive or vindictive damages.'"Henry v. R. Co., 93 S.C. 125; 75 S.E., 1018. Walker v.Glenn, 124 S.C. 501; 117 S.E., 723.
I think that the judgment should be reversed, and a new trial ordered, unless the plaintiff remit all of the judgment in excess of $25.
ON PETITION FOR REHEARING