Hiers v. South Carolina Power Co.

• Decision Date: 27 November 1941
• Docket Number: 15333.
• Citation: 17 S.E.2d 698,198 S.C. 280
• Parties: HIERS v. SOUTH CAROLINA POWER CO.
• Court: South Carolina Supreme Court

17 S.E.2d 698

198 S.C. 280

HIERS v. SOUTH CAROLINA POWER CO.

No. 15333.

Supreme Court of South Carolina

November 27, 1941

Crum & Crum, of Denmark, for appellant.

B D. Carter, of Bamberg, for respondent.

A. L GASTON, Acting Associate Justice.

This case originated in the forum of a Magistrate's Court where frequently pesky questions are germinated, which breed trouble throughout the case notwithstanding the terms of the Code requiring that substantial justice is to be rendered without regard to technical errors and defects, which do not affect the merits. Section 804, Code 1932. No particular form is required as to the pleadings; a variance between the proof on trial and the allegations in a pleading shall be disregarded as immaterial, unless the Court shall be satisfied that the adverse party has been misled to his prejudice. Section 274, Code 1932. Simplicity in pleadings is required in the Magistrate's Court. Upon appeal judgment shall be given according to the justice of the case, regardless of technical errors and defects not affecting the merits.

In the case at bar the plaintiff appeared as his own attorney, which is tantamount to the suggestion that he is apt to have an unwise client. However, this handicap has been overcome by reason of the services of the eminent counsel who now appears for the plaintiff-respondent. The complaint alleges that the plaintiff owned and operated a meat market, and grocery store, in Ehrhardt, together with a refrigerator and cooling system for the protection of fresh meats by means of electric current furnished by the defendant, "pursuant to agreement and contract." It is further alleged that the defendant negligently and wilfully failed to furnish current of sufficient voltage to operate the cooling system.

On defendant's motion to require plaintiff to elect, on the trial, the plaintiff elected to proceed on the ground of breach of contract, and not on tort. The jury found a verdict for plaintiff and judgment was duly entered thereon.

The Circuit Court sustained the judgment of the Magistrate's Court, hence this appeal.

By the first exception the defendant contends that there was no evidence of the terms of any contract or the breach of the terms of any contract and, therefore, the case should have been dismissed on the motions for a nonsuit and directed verdict. The evidence for the plaintiff showed that the defendant was supplying electric current to the plaintiff and the public. It required a voltage of 110 to run plaintiff's motor and a lower voltage caused the motor to burn out. Plaintiff testified as follows: "We needed a change in our transformers to carry proper amount of current to operate motors and lights for which we were paying. On 26th day of January, 1940, on Saturday morning I find my motor burned up. I called an electrician to bring me a new motor, he did and before good dark came he was called back to check up on his motor and he said the voltage was low. Mr. Crum objects to his stating what is hearsay. Mr. Hiers: I saw the volt on 102. Mr. Hiers: The said Power Company on the 14th day of March, 1940, removed the transformers and replaced it with a much larger size and also they rechecked the whole town and put up transformers where there were none and changed the smaller ones. I had made my complaint to the Power Company."

It is apparent that the defendant did not furnish transformers to carry the current for which plaintiff was paying; the transformers were furnished by the defendant; the service was rendered to enable plaintiff to operate the motor in his refrigerator outfit; the plaintiff's motor gave perfect service with voltage 110; yet the defendant did not deliver sufficient current to perform the services for which the defendant was being paid. The defendant delivered a lower voltage than it was being paid to furnish, because its transformers were not large enough. The defendant was familiar with the use plaintiff was making of the current and was under obligation to supply a sufficient voltage to reasonably take care of the customer's usual and ordinary purposes and to operate the plaintiff's motor. Of course, the defendant denied plaintiff's contention, and there was a conflict of testimony for the jury to decide. In fact the defendant offered evidence showing that similar equipment to plaintiff's served by the same transformer and farther from it, did not burn out; that the weather on the morning the motor was found burned out was twenty-two degrees at 7 A. M., that plaintiff's wiring was not according to underwriters' standards; that if a motor is properly fused it will not burn out from low voltage, but that fuse will burn out and protect the motor; that the defendant has automatic regulators for the purpose of regulating voltage; that the transformer was changed in March afterwards because two new service stations were being built and to take care of any show business that might come along; that plaintiff's voltage had been checked the last time Mr. Rhame was in plaintiff's store and it was 115 to 120; that motors burned out from other causes than low voltage.

There was some evidence for the jury to consider of a contractual relation between the plaintiff and the defendant. The duty of one to the other rested in contract and arose out of this obligation.

This clearly was a suit based on alleged breach of contract, and was an action ex contractu. Shaw v. Great A. & P. Tea Company et al., 189 S.C. 437, 1 S.E.2d 499; Jones v. South Carolina Power Company, 191 S.C. 419, at page 428, 4 S.E.2d 625.

The appellant does not except on the ground that a breach of contract is not alleged, but contends that the plaintiff failed to prove the existence of a contract, or its terms, or its breach. Certainly there was evidence tending to prove a contract between the parties for the sale and delivery by the defendant to the plaintiff of electric current for the purpose of operating the cooling plant. If the defendant failed to do so and thereby breached its contract, the plaintiff would be entitled to recover damages caused directly, proximately, naturally and reasonably within the contemplation of the parties as the result of such failure and breach. It was not necessary for plaintiff to go further and prove the defendant had not limited its liability in anywise because of the peculiar nature of its business. The defendant knew the nature of plaintiff's business and it is not denied that defendant was furnishing electric current to run the plaintiff's outfit; a failure to furnish adequate or sufficient current because of lack of transformers is the gist of plaintiff's action.

Appellant seeks to bring this case within the principles of the case of Williamson et al. v. South Carolina Electric & Gas Company, 193 S.C. 11, 7 S.E.2d 516. There is some similarity between the two cases. The Williamson case holds that the defendant was not liable for alleged negligence in placing improper fuses in the electric wiring at its power pole for the reasons that the evidence did not show any duty on the part of the defendant to protect plaintiff's electrically equipped gin house, and motor, nor to show any reason why plaintiff could not have, and did not, place fuses in his own wires to protect his motor. The failure in that...