Dyar v. Georgia Power Co.

This is an appeal from an order of his Honor, Judge Ramage, refusing to set aside service of process on the defendant. The plaintiff, a resident of Oconee County, owns certain lands described in the complaint bordering on the Tugaloo River; the company, a foreign corporation, with plants in Georgia for the generation of electric power, has dams and reservoirs on the Tugaloo in this State, which are used and useful in connection with such business. The plaintiff alleges that his lands, which are below the defendant's dams and reservoirs, have been injured by overflow, due to the careless and willful conduct of the company in handling and releasing the waters impounded by it; and brings this action for damages claimed to have been sustained thereby.

The summons and complaint were served on W.C. Hughs, Esq., who at the time was representing the defendant as its attorney in several cases pending in the Courts of Oconee County; and also on B.M. Hall, Jr., who was engaged in making a survey of lands in that county for the defendant, in an effort to obtain information to be used by him as an expert witness in suits in which the company was then and there involved. Upon due notice to the plaintiff, the defendant made special appearance for the purpose of moving to set aside the service on the following grounds: (1) That the company was not doing business in South Carolina; and (2) that the persons served were not the agents or representatives of the defendant. The motion was heard upon the summons and complaint, notices, certified copies of affidavits and other documentary evidence, and the testimony of several witnesses. In an order dated January 12, 1933, Judge Ramage held that the Court had jurisdiction of the defendant, "considering all that has been done."

It is a well-established rule that findings of fact by the Circuit Judge in a law case are not subject to review by the Supreme Court, unless entirely unsupported by the evidence. In Lipe v. Railway Co., 123 S.C. 515,116 S.E., 101, 30 A.L.R., 248, following former decisions, it was held that "a conclusion as to either of the points indicated (similar to the questions here made) necessarily involves the determination of a question of mixed law and fact, but the result of such determination by the Circuit Judge is essentially a finding of fact which this Court has no power to review, unless wholly unsupported by evidence or manifestly influenced or controlled by error of law." In State ex rel.Kerns v. Insurance Co., 168 S.C. 516, 167 S.E., 833, the rule was quoted with approval and held to be controlling. Also, in the later case of State v. W.T. Rawleigh Co., 172 S.C. 415,174 S.E., 385, although a different conclusion might have been reached by the Circuit Judge, as there was some evidence to sustain his findings of fact, it was declared that an affirmance of his decree was proper under the rule stated. See, also, Bass v. American Products, etc., Corporation,124 S.C. 346, 117 S.E., 594, 30 A.L.R., 168;Singletary v. Seed Co., 145 S.C. 539, 143 S.E., 269; andState v. Insurance Co., 168 S.C. 516, 167 S.E., 833.

In the case at bar, we have examined with care the affidavits and other documents which were before Judge Ramage, and we cannot say that the conclusion reached by him, that Hall at the time he was served was acting as an agent or representative of the company, is wholly without evidence to sustain it, or was based upon an erroneous conception or application of the law. It may be true that he was not acting as the defendant's general agent at the time, but, as stated by Mr. Justice Jones in Jenkins v. Penn Bridge Co., 73 S.C. 526,53 S.E., 991, 993, "the statute makes service on `any agent' of a foreign corporation sufficient. The statute, therefore, does not require that the agent shall be general, but is complied with by a service upon an agent having limited authority to represent his principal."

The suggestion that Judge Ramage made no finding that the service on Hall, his name not being mentioned in the order, gave to the Court jurisdiction of the defendant, is clearly without merit. The phrase used, "considering all that has been done," unquestionably included the consideration of all the evidence pertaining to the matter; and hence, as nothing appears to the contrary, it is clear that such service was a controlling factor in the conclusion reached.

The order appealed from should be affirmed.

MR. CHIEF JUSTICE BLEASE concurs.