Looper v. City of Easley

• Decision Date: 02 February 1934
• Docket Number: 13764.
• Citation: 172 S.E. 705,172 S.C. 11
• Parties: LOOPER v. CITY OF EASLEY et al.
• Court: South Carolina Supreme Court

172 S.E. 705

172 S.C. 11

LOOPER v. CITY OF EASLEY et al.

No. 13764.

Supreme Court of South Carolina

February 2, 1934

Appeal from Common Pleas Circuit Court of Pickens County; S.W. G Shipp, Judge.

Action by Joseph L. Looper against the City of Easley and others. From an order sustaining a demurrer and dismissing plaintiff's complaint, plaintiff appeals.

Affirmed.

B. F Martin, of Greenville, and Sam B. Craig and W. C. Mann, both of Pickens, for appellant.

J. D Wyatt, of Pickens, and Blythe & Bonham, of Greenville, for respondents.

BLEASE Chief Justice.

Referring to an alleged contract made by and between him and the defendants in this action, whereby the defendants were to furnish the plaintiff electric current for his ginnery mills, and buildings, situate without, but contiguous to, the corporate limits of the city of Easley, the gist of the complaint, which we are called upon to consider, is declared in the fourth, fifth, and sixth paragraphs thereof. The fourth and fifth paragraphs, in full, are as follows:

"IV. That heretofore the said defendants, said city in pursuance of its statutory and its general power and in furtherance of its corporate objects, furnishing water, light and power, acting through the proper officials thereof entered into a contract with the plaintiff to furnish said plaintiff electric current from said Water and Light Plant of said city for lighting and manufacturing purposes, upon terms, rights and charges fixed by agreement between the parties and that the said plaintiff paid valuable consideration therefor and carried out his part of the agreement.

"V. That by said agreement entered into by the City of Easley and the other defendants, after the threatened destruction of plaintiff's plant by fire caused by lightning coming in over the wires of said defendants, they agreed with plaintiff, in consideration of money paid, or to be paid by him, to furnish same by means and appliances (lightning arresters, etc.) that would provide reasonable protection in the future against lightning if he would continue to take the service; plaintiff carried out his part of the agreement and for some months continued to take the service at a cost of about $200.00 per month, or a total of $450.00 after this agreement.

"And that defendants with full knowledge of said agreement and the terms thereof, received this compensation under the above entire agreement and retained same, never offering to return same or any part thereof, either before or after the destruction of plaintiff's property by fire as herein set out."

In the sixth paragraph, which is quite lengthy, the plaintiff alleged, in substance, that the defendants breached their contract by failing to furnish and maintain, in proper condition, necessary appliances and apparatus, for the purpose of transmitting the electric current, and, as a result of such breaches, during a thunderstorm, the lightning came over the wires of the defendants, entered the buildings of the plaintiff, set fire thereto, and caused a disastrous conflagration, burning and destroying almost all of the property described in the complaint, to the damage of the plaintiff in the sum of $17,000.

A demurrer was sustained, and the complaint dismissed, by his honor, Judge Shipp. He held that, if the allegations of the complaint were to be construed to allege a cause of action in tort, then the action could not be maintained.

Considering the action, however, as one on contract, and for the breach thereof, the learned Circuit Judge held as follows:

(1) That the damages claimed, as set forth in the sixth paragraph, were not such as proximately arise from a breach of the contract declared upon.

(2) That the contract, as declared in paragraph 5 was ultra vires, and the action could not be maintained under section 7300 of the Code, as the law there enacted does not authorize municipal corporations to enter into contracts practically to insure property for which electric current is supplied.

(3) That the facts alleged in paragraph 5 did not show an additional payment was made by the plaintiff as consideration for the agreement alleged therein, or that any other amount was paid by him, other than was paid for the current under the original contract, and the allegations are insufficient if true, to create an estoppel on the part of the...