Dobson v. Postal Telegraph-Cable Co.
|60 S.E. 948,79 S.C. 429
|DOBSON v. POSTAL TELEGRAPH-CABLE CO.
|25 March 1908
|United 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.
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.
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.
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.
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.
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.
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.
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