Dyar v. Georgia Power Co.

• Decision Date: 04 October 1934
• Docket Number: 13918.
• Citation: 176 S.E. 711,173 S.C. 527
• Parties: DYAR v. GEORGIA POWER CO.
• Court: South Carolina Supreme Court

176 S.E. 711

173 S.C. 527

DYAR v. GEORGIA POWER CO.

No. 13918.

Supreme Court of South Carolina

October 4, 1934

Appeal from Tenth Judicial Circuit Court of Oconee County; C.J Ramage, Judge.

Action by A. J. Dyar against the Georgia Power Company, a corporation under the laws of the state of Georgia. From an order refusing to set aside the service of summons, defendant appeals.

Reversed.

STABLER J., and BLEASE, C.J., dissenting.

Colquitt Parker, Troutman & Arkwright, of Atlanta, Ga., and Hughs & Hughs, of Walhalla, for appellant.

Herndon & Thompson, of Walhalla, for respondent.

BONHAM Justice.

Georgia Power Company is a foreign corporation. It has lands, dams and reservoirs on Tugaloo river in Oconee county, S. C., used and useful in connection with its business of generating and disposing of electrical power. Its offices are in Atlanta, Ga., and its plants for the generation of electricity are in Georgia. The plaintiff, claiming that his lands, which are in Oconee county, below the defendant's dams and reservoirs on Tugaloo river, have been injured by overflow due to the negligent, willful, wanton, and grossly careless conduct of the defendant in the manner in which it has handled and released the water of the river which it has impounded, brings this action for damages.

The defendant appears solely for the purpose of moving to set aside the service of the summons and complaint for invalidity in the manner of service.

The motion was heard by Judge Ramage upon the summons, complaint, notices, affidavits, parol testimony taken in open court, and on documentary evidence .

The service challenged was made by the service of the summons and complaint on W. C. Hughs, Esq., upon the claim that he was the attorney of the defendant; by the service of the summons and complaint upon B. M. Hall, Jr., upon the hypothesis that he was an agent of the defendant in this state. The service was attempted to be made by sending by mail copies of the summons and complaint to Mr. Shumate, vice president of defendant company, with the request that he accept service, which Mr. Shumate refused to do. The service was attempted further to be made by publication of summons, and mailing copies of the summons and complaint to Mr. Wright, the secretary of the defendant company at his office in Atlanta, Ga.

In a short order Judge Ramage overruled the motion to set aside the service. The cardinal feature of his order is embraced in the following sentence: ""Considering all that has been done, and considering the word 'Attorney' in the Section cited, it appears to me that the Court has jurisdiction of the defendant."

It may be remarked here that the above reference to the word "Attorney" applies to its use in section 434 of vol. 1, Code 1932, which names those persons upon whom process may be served. Its relevancy will presently appear. The appeal to this court is from that order.

It may be held to be established by the record that W. C. Hughs, upon whom process was served, is the attorney of the defendant in a number of actions brought against this defendant by persons who claim damages for overflow and injury to their lands, which they allege were caused in the same manner and by the same means as are set forth in the complaint in the present action. It is further established that at the time of the service of process on W. C. Hughs neither he, nor his firm of Hughs & Hughs, had been employed to represent defendant in this action, and that they are retained and appear for the sole purpose of presenting the motion to set aside the service.

It may be further held to be established that B. M. Hall, Jr., upon whom service of the summons and complaint in this action was made, is a member of the firm of B. M. Hall & Sons, civil, mining, and hydraulic engineers, with offices in Atlanta, Ga. That this firm was under contract with Georgia Power Company to survey certain of the lands in Oconee county lying on Tugaloo, which are involved in suits now pending in the court of common pleas for Oconee county, S. C., with the view to obtain information to be used as evidence in the pending suits referred to, which are in no wise connected with the present action.

Attorneys for respondent state in their brief that they do not rely upon the service by mail attempted to be made on Mr. Shumate, nor do they rely upon the service by publication attempted to be made on Mr. Wright. We are therefore remitted to the determination of two questions:

Was the service on W. C. Hughs, Attorney, valid?

Was the service on B. M. Hall, Jr., valid; was B. M. Hall, Jr., at the time of the service on him, the agent of Georgia Power Company?

For convenient reference section 434 of the Code, governing service of process, is here set out:

"The summons shall be served by delivering a copy thereof as follows:

(1) If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director or agent thereof. Service upon any person occupying an office or room in any railway station, and attending to and transacting therein any business of any railroad, shall be deemed service upon the corporation under the charter of which such railroad is authorized by law; and such person shall be deemed the agent of said corporation, notwithstanding he may claim to be the agent of any other person or corporation claiming to operate said railroad by virtue of any lease, contract or agreement .

Such service can be made in respect to a foreign corporation only when it has property within the State, or the cause of action arose therein, or where such service shall be made in this State personally upon the president, cashier, treasurer, attorney or secretary, or any agent thereof. Provided, further, That in the case of domestic corporations service as effected under the terms of this section shall be effective and confer jurisdiction over any domestic corporation in any county where such domestic corporation shall own property and transact business regardless of whether or not such domestic corporation maintains an office or has agents in that county.

(2) If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian; or, if there be none within the State, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed.

(3) If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee or guardian has been appointed, to such committee or guardian, and to the defendant personally.

(4) In all other cases to the defendant personally, or to any person of discretion residing at the residence or employed at the place of business of said defendant."

It will be noted that the section makes provision for the service of summons on foreign corporations "only when it has property within the State, or the cause of action arose therein, or where such service shall be made in this State personally upon the president, cashier, treasurer, attorney or secretary, or any agent thereof."

The circuit judge states in his order overruling the motion to set aside the service that considering all that has been done, "and considering the word "Attorney' in the section cited," he thinks the court has jurisdiction. From this utterance it would appear that his Honor held that the service upon W. C. Hughs was a valid service and gave the court jurisdiction.

Mr. Hughs' firm represented the defendant in other causes then pending, but had not been engaged in any manner in the present action, and was not authorized to appear for and represent the defendant therein until employed solely for the purpose to move to set aside the service.

In the case of Reed v. Reed, 19 S.C. 548, Mr. Reed in answer to the letter of plaintiff's counsel referred him to his counsel, Mr. Elliott, "as my solicitor in the matter to which you have referred." Certain propositions were made to Mr. Elliott which were declined by his client and plaintiff's counsel was informed that "the case must take the usual course." Thereafter, in the absence of Mr. Elliott, the summons and complaint were handed to his partner, who was ignorant of the fact that their client had instructed Mr. Elliott not to accept service. The papers were returned to plaintiff's counsel with this information, and were again sent to Mr. Elliott, who again returned them. Motion to set aside the service was made and refused. On appeal this court said:

"There is no evidence whatever that any express authority was ever given by the defendant to attorneys to accept service for him, but, on the contrary, it distinctly appears that he had explicitly refused to confer such authority upon his attorneys, and this would seem to be conclusive of the question. The court could not obtain jurisdiction of the person of the defendant until he had been made a party in some one of the modes prescribed for that purpose. He had a perfect legal right to require that he should be legally served with process, and he alone could waive this legal right, and when he expressly refused so to do, certainly no one could lawfully assume to waive this right for him. It is manifest, therefore, that there was no legal service of the summons in this case and no waiver of such service by any one authorized so to do.

The respondent, however, contends that although there was no express authority given by the defendant to his attorneys to acknowledge service, yet such authority could and must be implied from the letter of the defendant to the senior counsel for plaintiff, in which he refers that counsel 'to ...