Baker v. Western Union Telegraph Co.

• Decision Date: 25 October 1910
• Parties: BAKER v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

69 S.E. 151

87 S.C. 174

BAKER v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

October 25, 1910

Appeal from Common Pleas Circuit Court of Sumter County; Geo. W Gage, Judge.

Action by W. H. Baker against the Western Union Telegraph Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

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

WOODS J.

The following telegram, announcing the death of the father of the plaintiff at the State Hospital for the Insane was delivered to the defendant on November 28, 1907, to be transmitted to the plaintiff: "Columbia, S.C. To W. H. Baker, Sumter, S.C. Your father dead. Wrote last night. Wire full instructions. J. W. Babcock, Pres." The message was promptly sent, and was received at defendant's Sumter office at 4:38 o'clock in the afternoon of the same day; but it was not delivered to the plaintiff until he called for it on the morning of the next day, in response to a notice received by mail that the telegram was held for him. The plaintiff went to Columbia on the first train after the receipt of the telegram, and brought the remains of his father to Sumter for interment. The suit is for the recovery of damages for mental anguish alleged to have been suffered by plaintiff, the allegation being that, but for the delay in the delivery of the message, the "plaintiff could have been in Columbia a great many hours sooner, and would have had the consolation of being with the dead body of his lamented father, in order that he might have looked after the same for interment." The charge of willfulness and wantonness in failing to deliver the message promptly was withdrawn at the trial; and on the issue of negligence the circuit court directed the jury to find a verdict for the defendant, holding that the defendant had shown a high degree of care in its efforts to deliver the message. The exceptions assign error in this ruling.

The evidence on behalf of the plaintiff was to the effect that he had been a resident of Sumter for 11 years; that on November 28th he was at his place of business, within 50 yards of defendant's office, the entire afternoon, except about two hours; that two of defendant's messenger boys had before delivered telegrams to him; and that defendant's messengers had also delivered telegrams to him at his residence on Liberty street. There can be no doubt that under the circumstances stated by the plaintiff the delay in delivery from 4:38 in the afternoon until 8 o'clock the next morning raised a presumption of negligence on the part of defendant. Poulnot v. W. U. Tel. Co., 69 S.C. 545, 48 S.E. 622; Hellams v. W. U. Tel. Co., 70 S.C. 83, 49 S.E. 12; Arial v. W. U. Tel. Co., 70 S.C. 418, 50 S.E. 6; Kirby v. W. U. Tel. Co., 77 S.C. 404, 58 S.E. 10, 122 Am. St. Rep. 580.

The contention of the defendant is that it so clearly explained the delay and so completely proved due diligence by evidence introduced on its behalf that the presumption of negligence from the long delay was completely overthrown, and the plaintiff's case left with no evidence to support it. When any fact raises a presumption of negligence, the general rule is that such fact itself stands as evidence of negligence throughout the trial, to be weighed by the jury along with the rebutting evidence of the defendant, in deciding whether the preponderance on the issue of negligence is on the side of the plaintiff or of the defendant; and it follows that, when this general rule is applicable, the court cannot adjudge that there is no evidence of negligence, and on that ground grant a nonsuit or direct a verdict in favor of the defendant. Joyner v. S.C. Ry. Co., 26 S.C. 49, 1 S.E. 52; Mack v. South Bound Ry. Co., 52 S.C. 323, 29 S.E. 905, 40 L. R. A. 679, 68 Am. St. Rep. 913; Hutto v. S. A. L. Ry., 81 S.C. 567, 62 S.E. 835; Griffith v. A. C. L. Ry....