Matheson v. American Tel. & Tel. Co.

• Decision Date: 27 October 1926
• Docket Number: 12088.
• Parties: MATHESON v. AMERICAN TELEPHONE & TELEGRAPH CO. et al.
• Court: South Carolina Supreme Court

135 S.E. 306

137 S.C. 227

MATHESON v. AMERICAN TELEPHONE & TELEGRAPH CO. et al.

No. 12088.

Supreme Court of South Carolina

October 27, 1926

Appeal from Common Pleas Circuit Court of Richland County; M. L Bonham, Judge.

Action by Lillie B. Matheson against the American Telephone & Telegraph Company and another. Judgment for defendants, and plaintiff appeals. Affirmed in part, and in part reversed and remanded for trial.

D. W Robinson and D. W. Robinson, Jr., both of Columbia, for appellant.

Nelson & Mullins, of Columbia, for respondents.

BLEASE J.

This cause has already been before this court on questions pertaining to the pleadings. 125 S.C. 297, 118 S.E. 617. After the decision of the court, plaintiff served an amended complaint. Thereupon the defendants moved before Hon. J. W De Vore, circuit judge, for an order to strike out the same, or in any event the second cause of action thereof, and for an order requiring plaintiff to amend her complaint in accordance with the decision of this court as announced. Judge De Vore required the plaintiff to strike out certain paragraphs and parts of paragraphs in the amended complaint, and to redraft the complaint in accordance with his order. The record states that there was no appeal from such order, and that the plaintiff complied therewith.

In the amended complaint, plaintiff sets forth two causes of action. The material part of the first of these is as follows:

"That on or about the _____ day of September, 1922, the defendant American Telephone & Telegraph Company, through its employee and codefendant, John T. Saxon, entered with a number of laborers upon the premises of the plaintiff, without her knowledge or consent, trespassed upon the same, needlessly, negligently, willfully, wantonly and with a high hand, cut and destroyed and injured honeysuckle vines, which plaintiff was growing and maintaining thereon for the purpose of protecting and beautifying her premises, also several young trees, which the plaintiff was cultivating and endeavoring to grow for ornamental and shade purposes on her premises."

The second cause of action charged delicts against the defendants, as follows:

"That the said defendants, through the defendant Saxon, acting for himself and his codefendant, and within the scope and line of his duties, as plaintiff is advised and believes, came to and upon the premises and into the home of the plaintiff, without her previous knowledge and without her consent, on or about the 12th day of October, 1922, stating that he came by direction and authority of his codefendant, and in response to the complaint lodged by the plaintiff, and then and there, the plaintiff being alone, as defendant knew and ascertained, except for a child two years old, willfully and wantonly cursed, abused, and threatened the plaintiff and her husband for a considerable length of time, terrifying the plaintiff, causing her serious and severe nervous shock and serious injury to her health."

The complaint also contains general allegations that the acts, wrongs, and trespasses on the part of the defendants were negligent, willful, and wanton, and that thereby the plaintiff suffered actual and punitive damages.

While the defendants filed separate answers, these pleadings set forth practically the same matters, as follows:

(1) An admission that the defendant Saxon was a lineman of his codefendant, American Telephone & Telegraph Company.

(2) That any acts done by the defendants in clearing the right of way of the telephone company were done under a certain grant from the predecessor in title of the plaintiff (this grant is set forth hereinafter), and as such were properly incident to the exercise of the right to construct and maintain a telephone line in accordance with the terms of the said grant.

(3) That the line of the telephone company was constructed and maintained along and in front of the premises of the plaintiff for an uninterrupted period of more than 20 years, and prior to the acquisition of the premises by the plaintiff.

(4) A general denial of all the allegations of the complaint not admitted.

The cause came on for trial in the court of common pleas of Richland county, before his honor, M. L. Bonham, circuit judge. There was a nonsuit as to the second cause of action. The verdict was in favor of the defendants as to the first cause of action. The plaintiff has appealed to this court from the results as to both causes of action.

The grant referred to hereinbefore, introduced in evidence by the defendants, was as follows:

"$2.50. Received of the American Telephone & Telegraph Company of South Carolina, two and 50/100 dollars in consideration of which I hereby grant unto said company, its successors and assigns, the right to construct, operate and maintain its line over and along the property which I own, or in which I have any interest, in the county of Richland and state of South Carolina, including the necessary poles and fixtures along the roads, streets, or highways adjoining the property owned by me in said county, said sums received in full payment for such right, and in full satisfaction for the trimming of any trees along said lines necessary to keep the wires cleared at least eighteen inches, and with the right to set the necessary guy and brace poles, and attach to trees the necessary guy wires. Covering damage to timber in constructing the line.

Witness my hand and seal, this 5th day of June, A. D. 1899, at Columbia, S. C ..

H. H. Dent (Landowner). [L. S.]

Witness: H. S. Hanner."

There are 15 exceptions. The appellant's attorneys have grouped these. Without setting them out seriatim, we will follow somewhat the grouping made.

Two of the exceptions relate to the court's ruling as to certain testimony offered by the plaintiff as to alleged declarations made by L. T. Shanklin and W. H. Craig, regarding conduct of the defendant Saxon prior to the occurrences alleged in the complaint in this action, with persons other than the plaintiff. It appears that this testimony was admitted as a part of the plaintiff's case in chief. The presiding judge stated at the time that he would strike it out if it was not properly connected up thereafter. Later, on motion of the defendants, over the objection of the plaintiff, this testimony was struck out. About the close of the reply testimony of the plaintiff, her counsel moved the court for withdrawal of the former order, striking out the testimony, and for the privilege of reoffering it; but the court adhered to the opinion that the testimony was incompetent. In our opinion, when this testimony was first offered it should not have been admitted, for at the time there was no proper proof that Messrs. Shanklin and Craig were agents of either of the defendants with authority to speak for them, or either of them. The plaintiff having failed to show in her testimony the necessary foundation for the admission of the alleged declarations, the court was correct in the order that the testimony be struck out.

But it appears to us that the defendants themselves proved what the plaintiff had failed to establish, that Shanklin and Craig were both agents of the defendant American Telephone & Telegraph Company. Both Shanklin and Craig so testified, as witnesses for the telephone company. There was no testimony, however, that either of them had authority to act for the defendant Saxon, and to make any declaration which would be binding upon him; therefore, the alleged declarations were certainly incompetent as to Saxon.

The rule, as laid down in this state, as to declarations on the part of an agent, which can be used against his principal, is that it must be shown either that such declarations were a part of the res gestae, or that they were made while the alleged agent was acting in the course of his authority. The declarations here, claimed to have been made, could not be admitted as a part of the res gestae. They were not made by the agent who was alleged to have committed the tort. They were made several weeks after the alleged occurrence by other agents. They did not concern the alleged delicts of either of the defendants.

Were they admissible against the telephone company, under the theory that Shanklin and Craig were, at the time of the making of the declarations, acting within the scope of their authority as agents of that defendant? The testimony of Shanklin and Craig shows that they were sent by their principal to make an investigation of the complaint of the plaintiff, of which the company had received notice. They gave their versions of the conversations. According to plaintiff and her husband, the declarations, sought to be introduced, were made at the time of the identical conversations related by Shanklin and Craig. The respondents take the position that the refusal to permit the evidence when it was reoffered, was within the discretion of the trial judge, because the evidence might have been offered in chief. It is true the authorities hold that it is within the discretion of the court to allow or to refuse the introduction of evidence in rebuttal, which should have been offered in chief. Brice v. Miller, 35 S.C. 537, 15 S.E. 272; Sims v. Jones, 43 S.C. 91, 20 S.E. 905; Bowling v. Mangum, 122 S.C. 179, 115 S.E. 212. We do not think the matter of the discretion of the court, however, should be considered here, for the reason that the plaintiff had offered this evidence in chief; it had been received and was afterwards stricken out. It appeared when the testimony had been connected, in that the defendants had shown that Shanklin and Craig were agents of the telephone company, the plaintiff did all she could when the testimony was reoffered. Still, it is our opinion that the court, under all the circumstances,...