Dobson v. Postal Telegraph-Cable Co.

Citation60 S.E. 948,79 S.C. 429
PartiesDOBSON v. POSTAL TELEGRAPH-CABLE CO.
Decision Date25 March 1908
CourtUnited States State Supreme Court of South Carolina

Appeal from Common Pleas Circuit Court of Spartanburg County; Geo E. Prince, Judge.

Action by J. P. Dobson against the Postal Telegraph-Cable Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. C Jefferies and Evans & Finley, for appellant.

Stanyarne Wilson, for respondent.

POPE C.J.

This was an action commenced by the service of a summons and complaint, alleging actual and vindictive damages by reason of entry of the defendant on lands of the plaintiff, erecting poles thereon, and stringing wires across. The answer set up a permit executed by the plaintiff to enter on the land erect poles, string wires, and cut timber for a right of way. The reply was that the permit was obtained from the plaintiff by fraud and misrepresentations. The case came on to be heard before his honor Judge Geo. E. Prince and a jury on July 24 1906. The jury rendered a verdict in favor of the plaintiff for $333. From order refusing a new trial and judgment entered on the verdict of the jury, the defendant now appeals to this court on 11 exceptions. They will be considered in their numerical order.

1. "It is respectfully submitted to this court that defendant's first ground of nonsuit, which was as follows, should have been sustained: (1) 'The statutory remedy of condemnation is plaintiff's proper remedy, and he is confined to the same.' The error complained of being that the complaint in this action alleges that the plaintiff's right of compensation for damages is denied; the answer denying this part of the allegation. For, if defendant had injured plaintiff by reason of going through plaintiff's land under the permit, the pleadings show that defendant was willing that plaintiff might recover compensation by the means of the statutory remedy of compensation."

The position of the appellant that plaintiff's remedy was under the statutes of this state providing for a condemnation proceeding cannot be sustained. That defendant sought to prevent the plaintiff's action on account of a trespass by proving an agreement in writing whereby the defendant was permitted to locate an alleged line on plaintiff's land was in itself inconsistent with the present position of the defendant here. The case of Burnett v. Postal Tel. Cable Co., 71 S.C. 146, 50 S.E. 780, was a case on all fours with the present application, and this court there held that the present form of action was the proper proceeding. So, Mason v. Postal Tel. Cable Co., 71 S.C. 150, 50 S.E. 781, is also in point, as also Phillips v. American Tel. & Tel. Co., 71 S.C. 571, 51 S.E. 247. This exception is overruled.

2. "Because his honor erred in not granting a nonsuit on defendant's second ground for motion of nonsuit, to wit: (2) 'Where permission is given to enter upon the lands of another no action lies for trespass.' It being respectfully submitted that the evidence in this case failed to show any damages that the plaintiff had received from the defendant by reason of the entry, especially in view of the fact that the defendant entered under a permit from the plaintiff."

This position is unsound as is found in the cases hereinbefore recited. The plaintiff here alleged fraud and misrepresentation by the defendant, and at least two witnesses sworn on behalf of the plaintiff tended to support the grounds of fraud and misrepresentation by the defendant. A reference to the authorities just quoted amply support this position. This exception is overruled.

3. "Because there was no evidence of demand for and refusal to compensate after the line was constructed. The error complained of being that the defendant, having gone in under the permit from the plaintiff, before any suit could be brought, a demand should have been made by the plaintiff upon defendant for compensation, and, in the absence of proof of the same, his honor should have granted a nonsuit, and should have sustained defendant's third ground of nonsuit."

We must overrule this ground of appeal. The defendant had hastily erected its 10 poles where only 4 were allowed, without the knowledge of the plaintiff. A demand therefore by the plaintiff had been forestalled by the defendant before any demand could be made.

4. "Because his honor erred in not sustaining defendant's fourth ground of nonsuit, which was as follows: (4) 'That there was no evidence tending to establish the allegation of fraud in procuring the signature of the plaintiff to the written permit, and there is no evidence to show an effort on the part of the defendant to perpetrate fraud in procuring the release.' The error complained of being that there was not a particle or scintilla of evidence showing fraud on the part of the agent or right of way man of the defendant company in procuring the permit or release from the plaintiff, and not a scintilla of evidence to sustain the allegations of the reply."

It became a matter of proof. Both sides made proof of their respective positions. The circuit judge therefore was justified in refusing a nonsuit on this ground. This exception is overruled.

5. "Because his honor erred in not nonsuiting the cause of action for vindictive damages, and erred in not sustaining defendant's fifth ground of nonsuit which was as follows: (5) 'Because there is not a scintilla of evidence of willfulness, wantonness, or high-hand conduct on the part of the defendant toward the plaintiff, and that this cause should be nonsuited.' The error being, it is respectfully submitted to this court, that there was not a scintilla of evidence on the part of the plaintiff to show that the defendant acted oppressively with high-hand, or in reckless or wanton disregard of the rights of the plaintiff."

This also is a matter upon which the parties had joined issue. Both introduced testimony in support of their contentions . In Duke v. Postal Tel. Cable Co., 71 S.C. 95, 50 S.E. 675, it is held: "Under allegations and proof of a willful tort, compensatory, as well as punitive damages, may be proved and recovered." This exception is overruled.

6. "Because his...

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