Summary
In Bell v. Brinkley et al., 159 S.C. 171, 156 S.E. 348, it was held that an action for an injunction could be properly brought against named defendants and "persons unknown", such term including such persons as were shown to have, or claimed, any interest in the matters involved in the suit.
Summary of this case from Pate v. ThomasOpinion
January 2, 1931.
Before DENNIS, J., Georgetown, May 1930. Affirmed.
Two actions by Ida Ford Bell against L. Brinkley and others.
From an order fixing damages suffered on account of injunction granted, plaintiff appeals.
The order of the lower Court and the exceptions follow:
ORDER OF JUDGE E.C. DENNISThe above-entitled actions came on to be heard by me at the April term of Court at Georgetown, S.C. There were originally two separate and distinct actions as above set forth. The plaintiff had enjoined the defendants from cutting timber on certain tracts of land. The actions were tried separately before Judge Townsend, and in each case the Court sustained the motion for a non suit. Then two separate orders of reference were obtained, one in each case, whereby it was referred to James W. Wingate, Esq., as special referee, to take testimony and report the amount of damages which had been sustained by the defendants in each action. The special referee took a great deal of testimony which he reported to this Court. By consent of counsel the special referee took the testimony of both cases together. The said referee having requested counsel to relieve him of the responsibility of making any finding, an order was passed by me relieving the referee of further duty in regard to the matter, and providing that the matter be heard as to the damages suffered by the defendants in both cases on the testimony already taken.
At the hearing before me, George L. Taylor, Esq., attorney for the plaintiff, did not make any serious contention as to the amount of damage as shown by the testimony. He made a motion to dismiss the proceedings on several grounds which can be briefly stated as follows: That the testimony showed that the defendant, L. Brinkley, invited the institution of the injunction suit; that while "L. Brinkley" was a party defendant the evidence showed he was operating as "L. Brinkley, trustee"; and that the other defendants, Charles Brinkley and William Barber, were the servants or agents of L. Brinkley, trustee.
An argument was heard in regard to the matter.
I cannot sustain the contention of the plaintiff that L. Brinkley invited the institution of the injunction suit. In fact, I do not think there is anything in the testimony to authorize this charge, but, even if there was, I do not think I could sustain it, because this was a matter to be decided by Judge Shipp when he granted the orders of reference and under the terms of the orders of reference the referee was merely to ascertain damages.
I am of opinion that it makes no practical difference whether the defendant, L. Brinkley, was a trustee or not as to the damages suffered by the defendants, Charles Brinkley and William Barber; Charles Brinkley and William Barber certainly suffered damages. They were defendants in the above-entitled action. And while I am of the opinion that under the facts of this case they are shown to be not servants or agents of L. Brinkley, trustee, but independent contractors, yet, even if they were servants or agents of L. Brinkley, trustee, they, as parties to the suit, are entitled to such damages as they can show that they suffered, even if it were held that they also had a right to claim against L. Brinkley, trustee, for such damages. I have not gone into the question of the damages suffered by L. Brinkley, trustee, because the other two defendants have shown sufficient damages to almost cover the amount of the bond, and, as in my view no damages in excess of the bond can be recovered, it would be useless to consider the damages suffered by L. Brinkley, trustee.
In the case of Ida Ford Bell v. L. Brinkley, Charles Brinkley, and William Barber, there was an original bond given in the sum of $250 and a subsequent bond given in the sum of $500, making a total of $750. The testimony in this case shows that the defendant, William Barber, paid $158.75 for moving his mill into the tract and $154.25 for moving it out. These items are not disputed. He also claims that his mill was idle for nineteen and one-half working days, and that he thereby lost the sum of $10 per day; that seven days elapsed from the time the injunction was served upon him until the date of the hearing of a motion to dissolve the injunction and twelve and one-half working days elapsed between the date of the hearing and the time he could get his mill moved to another location. The testimony for the plaintiff seems to me to sustain the contention of the defendants that $10 a day was a very reasonable charge.
Therefore, I would find as damages in this particular action for William Barber the sum of $508. I would find for Charles Brinkley, who lost seventeen and one-half days, the amount of $176.62, making the total amount of damages to the defendants, William Barber and Charles Brinkley, the sum of $684.62. And, if we add to this the referee's fee and the stenographer's fee, we will have a amount equal to the amount of the bond, so it is useless to consider other damages.
In the other case the injunction bond was only $250. Charles Brinkley and William Barber are not specifically named as defendants, but their work was stopped by reason of the injunction. From the testimony each of them suffered damages. I would find that William Barber suffered damages in the amount of $200, and Charles Brinkley in the amount of $50 on account of the second injunction suit. Therefore, I would find for William Barber the sum of $200 and for Charles Brinkley the sum of $50 on account of the second injunction.
EXCEPTIONS1. It is respectfully submitted that his Honor, the presiding Judge, erred in overruling the motion to dismiss the proceedings upon the ground that the defendant, L. Brinkley, ensnared, enticed, and deceived the plaintiff; the error being that the learned Judge held that this was a matter to be decided by Judge Shipp when he granted the order of reference, whereas nothing was before his Honor, Judge Ship, at the time of granting the order of reference except the question of the amount of damages suffered by the defendants and the method of ascertaining the same, the identity of the persons suffering damages and other facts brought out at the reference not being known at that time.
2. It is respectfully submitted that his Honor erred in finding that it made no particular difference whether the defendant, L. Brinkley, was a trustee or not as to the damages suffered by the defendants, Charles C. Brinkley and William Barber, the error being as follows:
(a) The upon the proceedings to ascertain the damages under the injunction bonds, two question arose: First, what was the amount of the damage, and, second, who were the parties damaged? The testimony of the defendant, L. Brinkley, undertook to reconcile the declaration of trust with the pleadings in the case so as to bring the alleged trust estate of Raymond S. Farr within the terms of the injunction bonds. The pleadings and the declaration of trust itself definitely and positively contradict the testimony of this defendant. The question was a paramount issue before the learned Judge, who held that it would be useless to consider the damages suffered by L. Brinkley, trustee, because the amount of damages suffered by the other defendants were sufficient to exhaust the injunction bonds.
(b) That, although the testimony disclosed the existence of a secret trust it does not show that the defendant, L. Brinkley, complied, or attempted to comply, with its terms, whereby the plaintiff was deceived and misled into believing that she was dealing with an insolvent and irresponsible person; whereas, if it had been known that the acts, matters, and things set forth and alleged in the complaint were done or committed by authority of the trust estate of Raymond S. Farr, the plaintiff would have had an opportunity to adopt a wholly different course.
(c) That, although the claim of L. Brinkley, trustee for Raymond S. Farr, was first presented in the testimony, his Honor did not pass upon his damages in any manner whatsoever.
(d) That L. Brinkley, as trustee for Raymond S. Farr, was not a party to either injunction suit or the proceedings to ascertain the damages. He was not so served with process and was not so named in the pleadings or in the injunction bonds.
3. It is respectfully submitted that his Honor erred in holding that the defendants, William Barber and Charles C. Brinkley were independent contractors; the error being that one who cuts or manufactures lumber for the owner at so much per thousand feet, and over whom such owner exercises complete control and dominion, is a servant of the owner, and not an independent contractor.
4. It is respectfully submitted that his Honor erred in awarding damages to any of the defendants, the error being that the testimony is susceptible of one inference only, namely, that said defendants were trespassers.
5. It is respectfully submitted that his Honor erred in holding that it was useless to consider the damages suffered by L. Brinkley, trustee; the error being that one who claims under a secret trust in a Court of equity must show that the existence of such trust did not mislead any party to the action; and, when the same was discovered, it became a paramount issue in the case, and should have been decided first and before considering any other question.
6. It is respectfully submitted that his Honor erred in finding that the defendants, Charles C. Brinkley and William Barber, were entitled to receive any amount whatsoever out of the injunction bond in the second action; the error being that said defendants were not parties to the second suit, were not served with process, did not appear therein, and were not named in the said injunction bond.
7. It is respectfully submitted that his Honor erred in finding that the amount of the injunction bond in the second suit was $250; the error being that said bond was in the penal sum of $200.
Mr. George L. Taylor, for appellant, cites: After claim of absolute ownership party not permitted to set up trust character of transaction: 39 Cyc. 450, 1 Perry on Trusts, Sec. 76, 1 Pom. Eq. Jur., Sec. 398. Who are independent contractors: 93 S.C. 131; 14 R.C.L., 67. Liability of surety on injunction bond: 2 High on Inj., 1588.
Mr. M.W. Pyatt, for respondents, cites: When party liable for acts of independent contractor: 35 Miss., 391; 75 Ga. 289; 93 S.C. 146; 14 R.C.L., 89, 69; 12 L.R.A. (N.S.), 632. Temporary restraining order is for benefit of all defendants included: 14 R.C.L., 176. Party bound by injunction order of which he has actual notice: 14 R.C.L., 417; 41 L.Ed., 1110. Independent contractor: 19 A.L.R., 1172; 70 L.Ed., 391. Defendants damaged by injunction: 140 S.C. 305. Unimportant whether party described as trustee or not in pleadings: 6 Rich Law., 317.
January 2, 1931. The opinion of the Court was delivered by
The order of his Honor, Circuit Judge Dennis, from which the plaintiff has appealed to this Court, sufficiently states the facts involved in the two cases, and it will be reported.
The exceptions of the appellant's counsel state very clearly his positions, and they will be incorporated in the report. We do not think it necessary to elaborate in determining the questions raised by the appeal, or to consider the exceptions in detail. The Circuit Judge's order, to our mind, answers all the exceptions, except the two to which we particularly refer. The exceptions relate mostly to questions of fact. The findings of the Circuit Judge in that regard must be clearly shown by the appellant to have been erroneous. An examination of the evidence in the transcript of record has not convinced us that the Circuit-Judge committed any error therein.
The contention of the appellant, as made by her sixth exception, is that Charles C. Brinkley and William Barber, not having been specifically named as parties defendants in the second suit, were not entitled to damages under the injunction bond executed by the plaintiff in that case. The action was against L. Brinkley and "other persons unknown to the plaintiff." The plaintiff had the right to bring an action against "persons unknown." The term included Charles C. Brinkley and William Barber when they were shown to have, or claimed, any interest in the matters involved in the suit. Charles C. Brinkley and William Barber., it was shown, were the parties sawing and cutting the timber. They had actual notice of the injunction. Their operations were interfered with. When the injunction was brought to their notice, it was their duty to obey it.
"It has been held that a defendant who obeys an injunction, although never served therewith, is entitled after judgment in his favor to claim the damages provided for in the undertaking to procure such injunction.
"Acquiescence in obedience to an ambiguous writ will prevent complainant from objecting to a recovery of damages sustained by defendant, by reason of such obedience, and complainant's bondsmen will be liable on their bond for such damages." 32 C.J., 436.
As to appellant's seventh exception, alleging error upon the part of the Circuit Judge in finding that the bond in the second suit was in the amount of $250 when the correct penal sum of that bond was only $200, we find by an examination of the record that the Circuit Judge did fall into error in this particular on account of having been furnished with an incorrect copy of the bond. Whatever harm was done to the appellant and her sureties on this account, however, was corrected when the attorney for the respondents, the parties who had been awarded the damages by the Court remitted of the awards in their favor the sum of $50. The appellant thinks that the corrections could not be made in this way, but that the respondents should have procured a supplemental order to make the correction. We do not think the supplemental order was in any way necessary. The respondents had the right to remit on the record the excessive amount found in their favor inadvertently by the trial Judge.
The judgment of this Court is that the order appealed from be, and the same is hereby, affirmed.
MESSRS. JUSTICES COTHRAN, STABLER, and CARTER and MR. ACTING ASSOCIATE JUSTICE JOHN I. COSGROVE, concur.