Miles v. Postal Tel. Cable Co.

• Decision Date: 28 June 1899
• Citation: 33 S.E. 493,55 S.C. 403
• Parties: MILES v. POSTAL TEL. CABLE CO. SETZLER v. SAME.
• Court: South Carolina Supreme Court

33 S.E. 493

55 S.C. 403

MILES v. POSTAL TEL. CABLE CO.

SETZLER v. SAME.

Supreme Court of South Carolina

June 28, 1899

Appeal from common pleas circuit court of Lexington county; Ernest Gary, Judge.

Actions by George W. Miles and by H. B. Setzler against the Postal Telegraph Cable Company. There were judgments for plaintiffs and defendant appeals; the cases being tried together on appeal. Affirmed.

The following is the charge of the court below:

"Mr Foreman and Gentlemen of the Jury: The plaintiff in this case, George W. Miles, and the Postal Telegraph Cable Company have had a disagreement as to their legal and respective rights. They cannot agree between themselves as to the issues, and have sought this tribunal to settle their differences. This is the tribunal fixed by law to settle such differences among litigants, and in settling those differences the law divides out responsibilities. As you possibly have heard at this term of court, it imposes on the court the responsibility of settling the issues of law that might arise in the conduct of the trial of the case, and puts upon the jury the responsibility of settling all differences of fact. Now, in order to better enable you to understand what the differences are, I think it better I should refresh your memory by calling your attention to what the real issues in the case are.

"The law prescribes, when one considers himself aggrieved, and seeks redress in the court of common pleas, that he shall state in writing what his cause of action is, and he shall state what he considers his grievance to be; and the defendant is required to put in writing a denial or admission of those respective charges or allegations in the complaint. That is called the 'pleadings.' And where the pleadings differ,--the plaintiff makes the allegation, and the defendant denies that in his answer and that issue must be settled by you and by me.

" The plaintiff's cause of action is set out in these words, omitting the formal part of the complaint--you will have the complaint before you, and you can see it. The cause of action is set out in these words: 'That the defendant carelessly and negligently permitted and allowed one of its telegraph wires to become loose on one of the insulators attached to the telegraph pole just in front of plaintiff's storehouse, said insulator being also defective, unsafe, and insecure, and carelessly and negligently permitted said telegraph wire to become detached from said defective insulator and telegraph pole, and to swag and fall upon a frame attached to the front of plaintiff's storehouse, which was used for an awning; and on the night of the said 20th of June, 1897, at about half-past nine o'clock, said telegraph wire conveyed a current or currents of electricity on and into plaintiff's said storehouse, and thereby caused said storehouse to ignite and burn down.' And the seventh allegation: 'And the plaintiff further shows that the defendant erected said telegraph pole at the place aforesaid without the knowledge and consent of the owner of the land on which said pole was erected.' Now, you will see, from the outset, that the gist of this action is negligence on the part of the telegraph company. The telegraph company denies that it was negligent; denies that its wire conveyed a current or currents of electricity to the store of plaintiff, and caused it to ignite. That makes the issue. The defendant sets up an affirmative defense in these words: 'And by way of affirmative defense this defendant alleges that the cause of action set forth in the plaintiff's complaint herein was due to no fault on the part of this defendant, but to an act of God, over which this defendant had no control, and could not reasonably anticipate. And by way of further affirmative defense this defendant alleges that the plaintiff herein contributed to the accident complained of in the complaint, by reason of having constructed and built the building and frame attached thereto, described in the complaint, encroaching upon the line of the public road and post road of the United States, as hereinbefore set forth, and too near to the poles, wires, and lines of this defendant, which were lawfully constructed, and had been so constructed and in successful operation long previous to the erection of the premises referred to in the complaint, and anterior to the period at which the alleged accident occurred, as set forth in said complaint, and that the plaintiff herein contributed to the injury complained of in said complaint.' Now, you see that is the issue. I have read what the complaint alleges as the cause of action. The defendant denies that, and sets up the further defense that it was an act of God, over which the defendant company had no control, and, further, that plaintiff so negligently constructed his house so near the pole of the telegraph line as to contribute himself to the negligence. So your first inquiry will be, was the loss or damage to the plaintiff, if any, due to the fact that the Postal Telegraph Company, the defendant in this case, carelessly and negligently permitted one of its telegraph wires attached to the telegraph pole in front of plaintiff's store to become detached from a defective insulator, and to swag and fall upon the frame in front of plaintiff's store, and thereby conveyed a current of electricity into plaintiff's store, which caused it to ignite and burn down? Was the fire due to that cause, or was the fire due to an act of God? And in determining this issue you will determine whether the store caused the wire to break by reason of the fact that the store was on fire and heated the same, and caused it to break and become defective, or whether the wire, by reason of the defects complained of, caused the store to ignite. You will observe the defendant claims--contends--that the storehouse caught on fire through no fault of its management or its line of wires, but that, by reason of the fact that the storehouse was on fire, it heated the wire and caused the wire to come back. That is the defendant's contention. The plaintiff's contention is that the wires were carelessly and negligently constructed; that they failed to carry off such currents of electricity as would be reasonably anticipated, and by reason of that defect it became detached from a defective insulator, and conveyed the current or currents of electricity into the storehouse of plaintiff, which caused it to ignite and burn down.

"Now, what was the cause of the fire? In order for plaintiff to recover, he must show by the preponderance of the evidence, not that the fire occurred by lightning, but that it was due to defects in the manner in which the defendant, the Postal Telegraph Company, either constructed its wires, or, being properly constructed, in not being kept in proper repair, by reason of defective construction, or not keeping it in proper repair, it failed to carry the current or currents of electricity that might be reasonably expected that they would carry off, and by reason of that defect it caused it to fall down, and caused the storehouse of the plaintiff to burn. Now, with reference to determining that question, I charge you, as matter of law, that the Postal Telegraph Company gets its authority to erect its line of wires from the general assembly of the state, and, if it is chartered, it has the right to construct and operate a line of telegraph wires; but the law enjoins upon it this duty that the wires must be so constructed, and must be kept in such repair, as to withstand all such ordinary storms, or such changes in the weather occasioned by heat or cold, as a man of ordinary prudence and reason would foresee under the circumstances. Now, if it did that, there is no negligence; if it didn't do that, was it defective? And from that you determine whether it was negligent--careless--in its construction or maintenance. The gist of this action is negligence. You must find negligence, to make the company liable. If there was negligence, then did that negligence cause the storehouse of this plaintiff to ignite and burn down? As I take it, the gist of this action is negligence. If you find there was no negligence, then, of course, the cause of action has failed, and the plaintiff could not recover. If there was negligence in the construction of the wire, or in not having it in proper repair, and the injury or damage complained of was occasioned by that defect, then the company would be liable for whatever damage was sustained by reason of that act of negligence.

" Now, as to the act of God. Of course it would be a preposterous proposition to say that, where one operates a telegraph wire or a railroad wire, that they necessarily become insurers. Lightning frequently strikes barns, dwelling houses, when there is no telegraph wire near by. By reason of the fact that a telegraph company erected a wire, they do not necessarily become insurers of property adjacent; but they are called upon to so construct them that they will not break down,--that they will not give way by reason of the fact that a rainstorm or windstorm, or any condition of the weather that a man, in erecting these wires, might, with proper prudence, proper forethought, proper care, anticipate. It would be his duty to so erect them as to withstand any such windstorm or changes in the weather, that a man of ordinary prudence and foresight could see. But if the accident was due to an act of God,--if it was such that a prudent man, of ordinary reason and foresight, could not reasonably anticipate,--then negligence could not be attributed to the defendant company. That would be an act of God, for which no one is responsible. A corporation or private individual is not responsible for an act of God, unless the act of God has...