208 F2d 901 Peace v. Southern Bell Tel & Tel Co

208 F.2d 901




No. 6693.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 23, 1953.

Decided Dec. 9, 1953.

James B. Stephen and Harvey W. Johnson, Spartanburg, S.C., for appellant.

Alfred F. Burgess, Greenville, S.C. (C. G. Wyche, and Wyche, Burgess & Wyche, Greenville, S.C., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.


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This is an appeal by plaintiff from a judgment for defendant in an action for trespass tried before the judge below without a jury. The alleged trespass consisted in the entry upon plaintiff's premises by an employee of the defendant telephone company and the removal by him of telephone equipment belonging to defendant. We agree with the judge below that no trespass was shown. Plaintiff was in arrears in the payment of charges due the telephone company and had been advised that the equipment would be removed unless these were paid. The company's employee was admitted to the premises by plaintiff's minor daughter who made no objection to the removal of the equipment. No breach of the peace was involved, no damage was done to plaintiff's property and the removal of the equipment upon failure to pay the charges therefor was authorized by the company's rules and regulations, to which plaintiff assented when the equipment was installed. The case was well summarized by the trial judge as follows:


'I find no facts warranting the inference that the conduct of defendant's agent in removing the telephone from plaintiff's home amounted to a breach of the peace or that it reasonably tended to such. Moreover there is no evidence warranting the inference that defendant's agent acted in reckless or wilful disregard of plaintiff's rights. The parties had agreed that, in the event of the non-payment of any sum due (the complaint admits a sum due), the defendant might without notice terminate the contract, sever connections and remove its equipment from plaintiff's premises. The defendant did no more than what the plaintiff agreed it might do: and there was no force or violence used or threatened.'


Nothing need be added to what was said by the District Judge in his findings and conclusions. See also Plate v. Southern Bell Tel. & Tel. Co., D.C., 98 F.Supp. 355.