King v. Western Union Telegraph Co.

• Decision Date: 26 October 1909
• Citation: 65 S.E. 944,84 S.C. 73
• Parties: KING v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

65 S.E. 944

84 S.C. 73

KING v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

October 26, 1909

Appeal from Common Pleas Circuit Court of Sumter County; John S Wilson, Judge.

Action by F. L. King against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed.

The following are defendant's requests to charge and the magistrate's charge to the jury referred to in the opinion:

Defendant's Requests to Charge.

"(1) If the jury believe from the evidence that the office of defendant at Sumter was closed from the 12th day of August 1907, to the 24th day of August, 1907, by the plaintiff, with the notice posted on the door, 'Closed on account of strike,' and that the plaintiff did not transmit and receive for defendant telegraphic messages during that period, or perform the customary duties of the office, the plaintiff cannot recover, unless the jury find there was a contract by which the defendant agreed to pay plaintiff for other services than transmitting and receiving messages, and that such other services were performed.

"(2) If the jury find that the plaintiff went out of the company's employ on a strike in or about August 12, 1907 then in order for the plaintiff to recover he must show some agreement, a contract of employment, with the defendant subsequent thereto, by which defendant agreed to pay plaintiff for such services, which services were actually performed.

"(3) The court construes the letter of W. G. Peeples, dated August 16, 1907, to F. L. King, plaintiff, and the jury are hereby instructed that they cannot find from this letter any contract or agreement on the part of the defendant to pay the plaintiff to keep the telegraph office at Sumter, S. C., open. Before the jury could find that this was a contract to pay the plaintiff, they must further find that he was also attending to the business of the telegraph office; and I construe this letter of Mr. Peeples to mean not only that he should have kept the office open, but also attend to the business and duties of that office as was usual and required in his position as manager.

"(4) I charge you that the item of $9.25 difference between Mr. King and Western Union Telegraph Company has nothing to do with this case, and the jury must not consider it. No claim for said amount is made by defendant in this case."

Magistrate's Charge to the Jury.

"It is for you to find if the plaintiff is entitled to recover anything in this case-- whether he did discharge duties of a general nature.

"The defendant's first request charged.

"The second request refused.

"The third request refused."

In reference to the fourth request, the magistrate charged the following: "You can only consider this in deciding whether or not the bond has been canceled, and whether the Western Union Telegraph Company would be bound by it.

"I charge you, if they owe him for any day's service, you can give him what amount you think he is entitled to under the proof as given."

Nelson & Nelson and Mark Reynolds, for appellant. L. D. Jennings, for respondent.

HYDRICK J.

The plaintiff sues on two causes of action: (1) He alleges that he was employed by the defendant as manager and operator at Sumter on a salary of $77 per month, and that defendant owes him at that rate from August 12 to August 24, 1907. (2) That, when defendant employed him, it required him to give a bond, and deducted the premium from his salary, agreeing to refund any unearned premium, if he did not continue in the service of defendant for the full period of the bond; and that at the time he quit the service of defendant $1.34 of the premium paid was unearned. The answer of the defendant was a general denial. The case was tried before a magistrate and a jury, and resulted in a verdict for plaintiff for $14.28 for salary, and $1.34 unearned premium on the bond. The defendant appealed to the circuit court on exceptions, alleging error in the exclusion of evidence, and in the charge and refusals to charge. The circuit court overruled all exceptions, and affirmed the judgment of the magistrate's court, and the defendant appeals therefrom to this court on the same exceptions.

The testimony tended to show: That plaintiff was employed by defendant as manager and operator at its Sumter office at a salary of $77 per month. That his duties were to attend to all the business of the office, including the collection of accounts, the sending and receiving of telegrams, and keeping the books. That in August, 1907, there was a general strike of the employés of the defendant. On August 11th plaintiff wrote W. G. Peeples, assistant superintendent of the defendant, the following letter: "Dear Sir. Owing to the very unpleasant conditions under which I am obliged to work here, I do not care to remain long. Therefore, I would like for you to relieve me at once." On the 16th the superintendent replied: "Dear Sir: I am in receipt of your letter, tendering your resignation on account of unsatisfactory conditions in this office. I infer from this that you are still...