Hinson v. A. T. Sistare Const. Co.
| Decision Date | 21 March 1960 |
| Docket Number | No. 17629,17629 |
| Citation | 113 S.E.2d 341,236 S.C. 125 |
| Parties | L. O. HINSON, Respondent, v. A. T. SISTARE CONSTRUCTION CO., Inc., Appellant. |
| Court | South Carolina Supreme Court |
Johnson & Smith, Spartanburg, for appellant.
Odom, Nolen & Foster, Spartanburg, J. LaRue Hinson, Greenville, for respondent.
In this action for alleged wilful trespass the jury found for the plaintiff $200 actual and $2,000 punitive damages. Following an order for new trial nisi, the plaintiff remitted on the record $1,000 of the verdict for punitive damages. The defendant has appealed.
The facts are largely undisputed. The plaintiff owns his home at 407 Pine Street in the city of Spartanburg. For the widening of that street the State Highway Department condemned the frontage of his lot, to a depth of about fifteen feet; and on August 3, 1956, the condemnation board made its award, in the amount of $700. The plaintiff, refusing it, served notice on August 12, of his intention to appeal to the court of common pleas.
The defendant, a road-building contractor, having been the low bidder on the project, requested of the highway department that he be permitted to begin work prior to the award of the contract. Thereupon the State Highway Engineer, on August 9, 1956, wrote to the District Engineer, with copy to the defendant, as follows:
'August 9, 1956
'From: State Highway Engineer
'To: District Engineer F. E. Armstrong
'Subject: Dockets 42.378 & 42.434--F. A. No. U-2604(3) U. S. Route 176--Spartanburg County
'A. T. Sistare Construction Company, Inc., who was low bidder at the August 7 letting on the contract for the above numbered dockets, has requested permission to begin work prior to the award of the contract.
'Right of way acquisition has been completed on the above mentioned dockets and I shall recommend to both The State Highway Commission and The Bureau of Public Roads that the Highway Department be authorized to award the contract to the above mentioned contractor.
'You are authorized to allow the contractor to begin work on this contract with the understanding that no payment can be made therefor until the contract has been executed and that any work done will be at his own risk and responsibility.'
Mr. A. T. Sistare, President of the defendant company, testified that he received a copy of the foregoing letter and thereafter on August 16 had his men begin clearing the strip of frontage of the plaintiff's lot. At that time the plaintiff, an army officer, was on duty at Fort Jackson, near Columbia, and there was nobody at his home in Spartanburg, his wife and children being away. The plaintiff came back to his home on week-ends. On the afternoon of August 18, a Saturday, when he came home, he found the defendant's bulldozer parked on the front part of his lot, on the strip before mentioned, and blocking his entrance driveway, so that he had to enter his property through a neighbor's lot. No work was going on at that time, and the bulldozer operator was not present. When he came to work on Monday morning, the 20th, the plaintiff told him that payment for the taking of his property had not been made, and requested him to move his equipment. According to plaintiff's testimony, the operator of the bulldozer replied that he was working for the defendant company and had been instructed to come upon the property and commence construction. It appears from the plaintiff's testimony that shortly thereafter the bulldozer was moved, but it was later parked on his property from time to time and he found it there on two or three weekends thereafter when he came home from Fort Jackson.
The defendant was awarded the road contract on August 21. Tender of the amount of the award, $700, was made to the plaintiff on September 11. Plaintiff's appeal in condemnation was tried in the circuit court on April 8, 1957, and resulted in a verdict for $2,350.
In the undisputed circumstances of the case at bar, as above stated, appellant's entry upon respondent's lot constituted a trespass; and the trial judge was not in error in so instructing the jury. Where a property owner has appealed from the award of the condemnation board, the highway department may not proceed with the contemplated work on his land without first having tendered him the amount of the award. Code 1952, § 33-140. We said in Ex parte Wessinger, S.C., 111 S.E.2d 13, 15, that the appellant there had 'waived any right to tender of the award by his attempted appeal'; but that case was concerned only with the property owner's application for permission to appeal from the award after the time prescribed for such an appeal had expired. The quoted language was dictum there; it is not to be taken as implying that during the pendency of an appeal duly taken the department may proceed with the contemplated work without having made the tender.
The highway department, being an agency of government, could not have been sued in tort for trespass in the absence of statute so permitting; respondent's right as against it was limited to requiring just compensation for the taking. Smith v. City of Greenville, 229 S.C. 252, 92 S.E.2d 639. Appellant here had no such limited liability, Clarke v. City of Greer, 231 S.C. 327, 98 S.E.2d 751, and indeed it makes no claim to it. It does contend, however, that there was no basis for the award of punitive damages because: (a) it did no more, after its entry upon respondent's lot, than it would have had the right to do had tender of the amount of the award been made prior to such entry; and (b) the notice given and objection made by the respondent to its bulldozer operator were not imputable to appellant.
This argument overlooks the fact, apparent from the testimony of Mr. Sistare, that appellant's entry upon the property was made after its receipt of the copy of the State Highway Engineer's letter of August 9, and therefore with full knowledge that it had no contract with the highway department. It overlooks also the fact that appellant, charged with knowledge of the law requiring tender before entry, entered and commenced its work of clearing without inquiry as to whether such tender had been made.
Trespass through mere negligence affords no ground for punitive damages; but such damages may be awarded where the trespass is wilful and deliberate. Matheson v. American Telephone & Telegraph Co., 137 S.C. 227, 135 S.E. 306; Terwilliger v. White, 222 S.C. 176, 72 S.E.2d 169; Davenport v. Woodside Cotton Mills Co., 225 S.E. 52, 80 S.E.2d 740; Clarke v. City of Greer, supra. ...
To continue reading
Request your trial
-
McCall by Andrews v. Batson
...601, 115 S.E.2d 286 (1960). 32. Moseley v. S.C. Highway Dep't, 236 S.C. 499, 115 S.E.2d 172 (1960). 33. Hinson v. A.T. Sistare Construction Co., 236 S.C. 125, 113 S.E.2d 341 (1960). 34. Furr v. City of Rock Hill, 235 S.C. 44, 109 S.E.2d 697 (1959). 35. McKenzie v. City of Florence, 234 S.C.......
-
Blanton Enterprises, Inc. v. Burger King Corp.
...conduct is willful, wanton, or reckless. Camp v. Components, Inc., 285 S.C. 443, 330 S.E.2d 315 (Ct.App.1985); A. T. Sistance Construction Co., 236 S.C. 125, 113 S.E.2d 341 (1960) (Ct.App.1985). As is clear from the court's earlier discussion, plaintiff has alleged no facts even approaching......
-
Basista v. Weir
...but not necessarily an award. E.g., Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960); Hinson v. A. T. Sistare Constr. Co., 236 S.C. 125, 113 S.E.2d 341 (1960). South Carolina has allowed punitive damages to stand on the presumption that nominal damages were merged with th......
-
Tennessee Gas Transmission Co. v. Violet Trapping Co.
...237 S.C. 386, 117 S.E.2d 561; South Carolina State High. Dept. v. Southern Ry. Co., 239 S.C. 1, 121 S.E.2d 236; Hinson v. A. T. Sistare Const. Co., 236 S.C. 125, 113 S.E.2d 341.Kentucky:--Sec. 13, Ky. Bill of Rights; Sec. 242, Ky.Const.; See, Ky.R.S., Sec. 416.230 et seq. especially 416.280......