Brown v. American Tel. & Tel. Co.

• Decision Date: 03 March 1909
• Citation: 63 S.E. 744,82 S.C. 173
• Parties: BROWN v. AMERICAN TELEPHONE & TELEGRAPH CO.
• Court: South Carolina Supreme Court

63 S.E. 744

82 S.C. 173

BROWN v. AMERICAN TELEPHONE & TELEGRAPH CO.

Supreme Court of South Carolina

March 3, 1909

Appeal from Common Pleas Circuit Court of Spartanburg County; R. C Watts, Judge.

Action by Mary R. Brown against the American Telephone & Telegraph Company. From a judgment for plaintiff, defendant appeals. Appeal dismissed.

Ralph K. Carson, for appellant.

Stanyarne Wilson, for respondent.

GARY A. J.

This is an action for damages. The allegations of the complaint (omitting the formal portions thereof) are as follows "That on the _____ day of _____ 1901, the defendant oppressively, without right, with a high hand, and in reckless and wanton disregard of plaintiff's rights, went upon her tract of land, which lies partially in said county of Spartanburg, bounded by lands of R. R. Brown C. P. Petit, Jos. Lee, and W. T. Hammett, and cut a swath of about 18 feet width through her woodland, a part of said tract, by cutting down the timber for said width and for a distance of 600 yards, while constructing its lines of poles and wires; to her damage $1,000." The defendant denied said allegations, and set up the following defense: "That on or about the _____ day of May, 1901, the plaintiff, for valuable consideration, granted to the defendant, under her hand and seal, the right to enter upon the premises and construct its telephone lines, and that the said lines were constructed by virtue of and in accordance with the terms of said grant." The defendant also contended that the plaintiff was estopped by her laches from instituting this action. The defendant made a motion for a nonsuit, which was refused. The only evidence which the defendant introduced was the grant of the right of way executed by the plaintiff, giving the defendant the right to construct its line, and to cut down any trees that might interfere with it. The jury rendered a verdict in favor of the plaintiff for $750 (which was reduced to $500), and the defendant appealed.

The first exception is as follows: "The court below erred in refusing defendant's motion for a nonsuit, the error being: (a) In holding that a principal was liable for punitive damages for the fraud of its agent, in the absence of knowledge of notice of the fraud being brought home to the principal, and an opportunity given to repudiate. (b) In not holding that plaintiff was estopped by her written grant for right of way, she having testified that she could read, had an opportunity of reading, that she signed the same without reading, and that defendant's agent did not make any statement to her as to the contents of the paper, and by her laches. (c) In not holding that the plaintiff having permitted defendant to enter, and there being no proof of demand or refusal of compensation, that her remedy by condemnation under the statute was exclusive."

We will consider subdivisions "a," "b," and "c" in their regular order.

(a) The following cases show that this assignment of error cannot be sustained, as the principal is responsible for the fraudulent act of his agent, where it is done in the course of his employment, and even when it may have been performed contrary to the express directions of the principal. Reynolds v. Witte, 13 S.C. 5, 36 Am. Rep. 678; Rucker v. Smoke, 37 S.C. 377, 16 S.E. 40, 34 Am. St. Rep. 758; Hutchison v. Real Estate Co., 65 S.C. 75, 43 S.E. 295; Williams v. Tolbert, 76 S.C. 211, 56 S.E. 908.

(b) The testimony not only discloses the facts set out in this subdivision, but it also tends to show that the plaintiff relied upon the statements made by the agent of the defendant, who misinformed and misled her as to her rights, as will be seen...