Roberts v. Western Union Telegraph Co.

• Citation: 56 S.E. 960,76 S.C. 275
• Parties: ROBERTS v. WESTERN UNION TELEGRAPH CO.
• Decision Date: 08 March 1907
• Court: United States State Supreme Court of South Carolina

56 S.E. 960

76 S.C. 275

ROBERTS v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

March 8, 1907

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

Action by Jennie Roberts against the Western Union Telegraph Company. Judgment for plaintiff. Defendant appeals. Affirmed.

G. H Feasons, Evans & Finley, and S.C. Jeffries, for appellant. Butler & Osborne, for respondent.

GARY A. J.

This is the second appeal herein. The first is reported in 73 S.C 520, 53 S.E. 985. The action is for damages arising from mental anguish, alleged to have been suffered by the plaintiff in consequence of the failure of the defendant to deliver the following telegram: "Toccoa, Ga., 1-1-24. To Mrs. Jennie Roberts, Blacksburg, S.C. Fannie will not live but a few hours. W. E. Acree." The message was sent on Sunday, the 24th of January, 1904, and was received by the agent of the defendant at Blacksburg about 2 o'clock p m. His honor, the presiding judge, charged the jury that: "There is no evidence that made it the duty of the defendant company to deliver the telegram on Sunday, and, on its failure to deliver on Sunday, negligence cannot be predicated, and the company is not responsible." About 3 or 4 o'clock on Monday afternoon (25th of January), the plaintiff, upon returning from a visit to a neighbor, was informed that some one with a message had been looking for her. She telephoned for the message, and received it about 7 o'clock p. m. Her sister died on Sunday night about 10 o'clock, and the funeral took place about 4 o'clock Monday afternoon. The jury rendered a verdict in favor of the plaintiff for $550, and the defendant appealed.

1. The first question to be determined is whether the plaintiff's own testimony showed that she would not and could not have gone to her sister's funeral, if the telegram had been promptly delivered on Monday morning, within a reasonable time after the office hours began. The plaintiff testified as follows: "Q. If this telegram had been delivered to you promptly, state whether or not you would have gone to be with your sister. A. I most assuredly would. *** Q. I asked you whether or not, if this telegram had been promptly delivered there, Sunday afternoon or Monday morning, whether or not you would have taken steps immediately to have gone to Toccoa? A. Yes, sir most assuredly. *** Q. What would you have done if you had received this telegram promptly? A. I would have gone, of course, to Toccoa. Q. Now, as to the trains, you might have gone on. Could you have gone on 39 Monday morning? A. Yes, sir; I guess I could. Q. Could you have gone on 37 Monday? A. I do not know whether I could have. Q. 37 is a vestibule train? A. Yes, sir. Q. Could you have gone on No. 11 Monday? A. Yes, sir. *** [The testimony shows that No. 39 passes Blacksburg about 10 o'clock in the forenoon, and arrives at Toccoa at 1.18 p. m.; No....