Southern Bell Telephone & Telegraph Co. v. Cherokee, Inc.

375 S.E.2d 374, 297 S.C. 206, 1988 S.C. App. LEXIS 171

• Court: Court of Appeals of South Carolina
• Decided: December 5, 1988
• Docket: 1264
• Status: Published

Opinion

Shaw, Judge:

Appellant, Southern Bell Telephone & Telegraph Company, sued respondent, Cherokee, Inc., for negligence and trespass. The trial judge, sitting without a jury, entered judgment in favor of Cherokee. Southern Bell appeals. We affirm.

Cherokee is a construction company engaged primarily in highway construction. On April 16, 1985, Cherokee, while excavating at a development site, cut and damaged an undrground cable of Southern Bell’s. After the incident, Cherokee denied Southern Bell’s claim for damages asserting that someone from Southern Bell had assured them the cable was thirty inches deep when, in actuality, it was buried at only eighteen inches or less. The trial judge found Southern Bell, or its agent, had marked the cable for Cherokee in contemplation of excavation. He further found the person marking the cable informed Cherokee the cable was buried at thirty inches, knowing Cherokee intended to excavate to a depth of eighteen inches. He concluded the person marking the cables for Southern Bell failed to provide accurate information to Cherokee and Southern Bell was, thus, contributorily negligent. Southern Bell appeals the finding of contributory negligence arguing no agency relationship was shown between Southern Bell and the individual who marked the cable.

In an action at law, on appeal of a case tried before a judge without a jury, the findings of the judge will not be disturbed unless found to be without evidence which reasonably supports the judge’s findings. Townes Associates, Ltd. v. City of Greenville, 266 S. C. 81, 221 S. E. (2d) 773 (1976).

A review of the record discloses the following. The normal procedure for locating a cable is to call or write the utility company which owns the particular cable, or a locating service and request someone to mark the cable. When working in the city of Columbia, Cherokee uses Palmetto Utility Location Service for locating Southern Bell cables, unless there happens to be a Southern Bell locator there already. When Palmetto receives a call from a contractor, it relays the information to the utility company and the utility company then sends a locator. Employees of Southern Bell locate their cables. Southern Bell employees were on this particular construction site often. If on-site, it is not unusual for Cherokee to request a Southern Bell locator to locate additional lines. Another utility would not mark Southern Bell cables.

We therefore hold there is ample evidence in the record which reasonably supports the trial judge’s findings. Accordingly, the order below is affirmed.

Bell and Cureton, JJ., concur.