Phillips v. Am. Tel. & Tel. Co.*

Decision Date06 May 1905
Citation51 S.E. 247,71 S.C. 571
CourtSouth Carolina Supreme Court
PartiesPHILLIPS. v. AMERICAN TELEPHONE & TELEGRAPH CO.*

1. Telegraph Companies — Trespass — Action for Damages.

Where a telegraph company has erected its lines outside of the way granted to it, the remedy is by an action for damages, and not by condemnation.

2. Deed—Consideration—Seal.

Though a seal is prima facie evidence of consideration for a deed, and, if no consideration is expressed, the seal would be sufficient, the principle does not apply when the question is whether the covenantor should return to the covenantee the consideration received before repudiating the deed for fraud.

[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Deeds, §§ 25, 585.]

3. Trial—Instruction on the Facts.

An instruction in an action for damages to land by a telegraph company that: "You know what 'actual' means and what 'damages'mean. Now, in this case, what was the actual damages? Figure that out. Now go to the question of punitive damages, and figure that out"—is not on the facts.

Appeal from Common Pleas Circuit Court of Cherokee County; Gage, Judge.

Action by J. V. Phillips against the American Telephone & Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ralph K. Carson, for appellant.

Stanyarne Wilson, for respondent.

POPE, C. J. Plaintiff brought his action against defendant for $1,000 damages, alleging that in the construction of its line through the plaintiff's land in Cherokee county the defendant oppressively, without right, with high hand, in reckless and wanton disregard of the rights of plaintiff, went upon the plaintiff's lands in said county, and cut a swath about 18 feet wide through his woodland, a part of said tract, by cutting down the timber for said width, and for a distance of 600 yards, while constructing its poles, wires, and lines; and also drove over and through his sown wheat on said land, and permitted stock in its service to eat upon and trample it down. The defendant, in its answer, set up that the plaintiff, for a valuable consideration, under his hand and seal, granted to the defendant, its successors and assigns, the right to construct, operate, and maintain its line of telephone over, along, and upon the property of the plaintiff described in the complaint; and that in pursuance of the said grant and license of the plaintiff the defendant did enter upon the premises described in the complaint, and constructed its line of telephone in the manner, under the terms, and in accordance with the privileges contained in said grant The cause came on for trial before a judge and jury. Testimony was introduced on both sides. At the conclusion of plaintiff's testimony the defendant moved for a nonsuit and dismissal of the complaint on the ground that it had been proven that the defendant entered upon the lands of the plaintiff with his knowledge and consent, and that there was no proof that the plaintiff had made demand for compensation and been refused; that where entry upon land was with knowledge and consent of the plaintiff, the remedy by condemnation proceedings was exclusive, unless it had been shown by the evidence that demand for compensation had been made and refused after the line had been constructed; that, the remedy by condemnation being exclusive, the court was without jurisdiction, and the defendant was entitled to a nonsuit and dismissal of the complaint. The circuit judge declined this motion. The defendant then introduced its testimony. The following is the deed which the plaintiff was said to have made for the right of way:

"Received of the American Telephone and Telegraph Company of South Carolina, one dollar —— dollars in consideration of which I hereby grant unto said company, its successors and assigns, the right to construct, operate and maintain its lines over and along the property which I own, or in which I have an interest in the township of White Plains, county of Cherokee, 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 township, said sums received in full payment for such right, and in full satisfaction of trimming any trees along said lines necessary to keep the wires cleared at least eighteen inches, with the right to set the necessary guy and brace poles, and attach to trees the necessary guy wires, and with the right to trim or cut down any tree that might interfere with the line.

"Witness my hand and seal, this 7th day of March. 1901, at Clifton, No. 1, S. C. [post office address].

"J. V. Phillips. [L. S.]

"Witness, C. D. Warlick [Land Owner]."

"Private Property.

"No officer or employé of this company is authorized to procure a receipt to a voucher, except upon the payment of its amount, and the company hereby gives notice that if this voucher is signed without payment being made, it is done at the signer's own risk."

After the judge's charge to the jury, they retired, and found a verdict of $100 for the plaintiff against the defendant. Thereupon the defendant gave notice of a motion for a new trial upon the following grounds: "(1) That the verdict was excessive. That the defendant, having entered with the consent of the plaintiff, was not a trespasser—punitive damages could not be awarded; and that the amount of the verdict was in excess of the damages proved. (2) That the verdict was contrary to the law as charged by the court, the jury having been instructed by the court that the contract could not be rescinded without a return or tender in return of the consideration paid, and the proof being conclusive as to the consideration. (3) Because the entry of the defendant having been made with the consent and knowledge of the plaintiff, there being no proof of a demand for and refusal of compensation, or that any timber had been cut that did not interfere with the wires, that plaintiff's remedy by condemnation was exclusive, and damages could not be awarded by the court. (4) Because there was no proof of fraud, and the verdict of the jury was contrary to the law as charged by the court."

In refusing the motion for a new trial, the judge used the following language: "First place, I don't regard the verdict punitive. A suit for $1,000 and a verdict of $100, I do not see any element of punitive damages init Next, the consideration. You can always go into the consideration. Surely, if two parties made a contract, and the consideration was a dollar, you can show the dollar was never paid. But the other question is a serious question, and I have ruled on it. That is Jurisdiction. It is a close question, and I may be wrong on that question; but that is the way it looks to me. Now, on the other question, about the testimony, I will be frank with you. I would give the same weight to the testimony as they did. Wallack didn't deny that he gave it to him as a present. Mr. Phillips' testimony impressed me. Mr. Wilson put it too much, and Phillips called...

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4 cases
  • Groce v. Greenville, S. & A. Ry. Co.
    • United States
    • South Carolina Supreme Court
    • 28 d5 Março d5 1913
    ... ... S.C. 148, 50 S.E. 780; Mason v. Telegraph Co., 71 ... S.C. 152, 50 S.E. 781; Phillips v. Telegraph Co., 71 ... S.C. 577, 51 S.E. 247; Burnett v. Telegraph Co., 79 ... S.C. 465, 60 ... ...
  • Groce v. Greenville
    • United States
    • South Carolina Supreme Court
    • 28 d5 Março d5 1913
    ...Rep. 750; Burnett v. Telegraph Co., 71 S. C. 148, 50 S. E. 780; Mason v. Telegraph Co., 71 S. C. 152, 50 S. E. 781; Phillips v. Telegraph Co., 71 S. C. 577, 51 S. E. 247; Burnett v. Telegraph Co., 79 S. C. 465, 60 S. E. 1116; 38 Cyc. 998. The allegation here is that the defendant is trespas......
  • Dobson v. Postal Telegraph-Cable Co.
    • United States
    • South Carolina Supreme Court
    • 25 d3 Março d3 1908
    ... ... present position of the defendant here. The case of ... Burnett v. Postal Tel. Cable Co., 71 S.C. 146, 50 ... S.E. 780, was a case on all fours with the present ... Postal ... Tel. Cable Co., 71 S.C. 150, 50 S.E. 781, is also in ... point, as also Phillips v. American Tel. & Tel. Co., ... 71 S.C. 571, 51 S.E. 247. This exception is overruled ... ...
  • Phillips v. American Tel. & Tel. Co.
    • United States
    • South Carolina Supreme Court
    • 6 d6 Maio d6 1905

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