Bethea v. Western Union Tel. Co.

• Decision Date: 02 July 1913
• Citation: 78 S.E. 742,95 S.C. 166
• Parties: BETHEA v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

78 S.E. 742

95 S.C. 166

BETHEA v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

July 2, 1913

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

Action by G. F. Bethea against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. H Fearons, of New York City, Willcox & Willcox and J. S Mitchell, all of Florence, L. W. McLemore, of Sumter, and Henry Buck, of Marion, for appellant. Townsend, Rogers & McLaurin, of Dillon, for respondent.

GARY C.J.

This is an action for damages, alleged to have been sustained by the plaintiff through the wrongful acts of the defendant in failing to deliver the following telegram within the time required by law: "Florence, S. C., August 27, 1910. Wesley Bethea, Dillon, S. C.: I will be in with corpse to-night. G. F. Bethea." The corpse mentioned in the telegram was that of Ella Bethea, sister of the plaintiff and daughter of Wesley Bethea, to whom the message was sent.

The fourth and sixth paragraphs of the complaint are as follows:

"IV. That plaintiff is informed and believes that the said message was not received at Dillon until 9:45 o'clock a. m. on the 28th day of August, 1910, and was not delivered to the addressee, Wesley Bethea, until the morning of the 29th day of August, 1910, although the said Wesley Bethea lived within a few hundred yards of the Dillon office of the said defendant, and was in and about his home continuously, from the time said message was delivered to the defendant at Florence on the afternoon of the 27th of August, 1910, to the time when same was delivered to him in the morning of the 29th day of August, 1910."

"VI. That the failure of the defendant to transmit and deliver said message promptly, as it was in duty bound to do, was willful, wanton, and gross negligence of a plain duty, which it owed to this plaintiff, and by reason of the willful, wanton, and gross negligence and failure of the defendant to transmit and deliver said message no one was at the depot to meet the mortal remains of his said sister with conveyances, and carry them to the home of his father, and the corpse of his said sister was obliged to lie unprotected and unattended at the depot in Dillon for a considerable length of time."

The jury rendered a verdict in favor of the plaintiff for $650, and the defendant appealed.

The appellant's attorneys in their argument say: "The principal question presented by the appeal is whether the presiding judge erred in refusing to direct a verdict in favor of the defendant at the close of all the evidence, on the ground that there was no evidence sufficient to take the issue of willfulness to the jury." We will proceed to the consideration of that question.

H. W Seig, the telegraph operator at Florence, to whom the message was delivered for transmission, thus testified: "Q. Do you recall any conversation that took place between you and the sender of that message? A. Yes, sir; I told him there would be some delay, on account I was there by myself. The manager was called out of town on account of his wife being sick, and it was piled up around there. Q. You told him that, at the time you accepted the message? A. Yes, sir; I told him I didn't know how much it would be. Q. Did you make an effort to send it to Dillon that night? A. Yes, sir. Q. Why couldn't you send it? A. I was busy on other wires around there, and I didn't have very much time to get in a call. The wire, I think, from Wilmington to Augusta, it was always piled up pretty near, and I didn't have the time I should have had to call him, on account of the manager being out of town. Q. Was the Dillon office on that wire you speak of? A. Yes, sir. Q. When you called him, you were not able to get him? A. No, sir; I didn't have...