Robertson v. Western Union Tel. Co.
Decision Date | 12 June 1913 |
Citation | 78 S.E. 977,95 S.C. 356 |
Parties | ROBERTSON v. WESTERN UNION TELEGRAPH CO. |
Court | South Carolina Supreme Court |
On Petition for Rehearing, August 2, 1913.
Appeal from Common Pleas Circuit Court of Edgefield County; S.W. G Shipp, Judge.
"To be officially reported."
John Gary Evans, of Spartanburg, and N. G. Evans, of Edgefield for appellant. Thurmond & Nicholson, of Edgefield, for respondent.
This is an action for damages, alleged to have been sustained by the plaintiff, through the negligence of the defendant, in failing to deliver a telegram within a reasonable time.
The plaintiff and her husband lived at Ninety-Six, S. C., and worked in the factory. The husband went to Edgefield, S. C. on a bicycle, to visit his sister Mrs. Kate Waits, and becoming suddenly ill, sent the following telegram to his wife on the 17th of July, 1910: "I am sick; we will be home tomorrow on train." He failed to arrive at home on the 18th of July, and his wife, on that day sent to him the following message: "When will you be home?" And in reply thereto, Mrs. Kate Waits (in whose care the telegram was addressed) on the 18th of July, 1910, at 6 o'clock p m., delivered to the defendant, for transmission the following telegram: "Jerry is on way on bicycle; left at ten." The said telegram was not delivered to the plaintiff until the next day at 10 o'clock a. m., July 19, 1910, and as the result of the failure to deliver the last-mentioned telegram, the plaintiff alleges that she suffered mental anguish from 7 o'clock p. m. of 18th July, 1910, until 10 o'clock p. m. of that day when her husband, Jerry Robertson, returned home. The defendant interposed the defense that its office hours at Ninety Six for receiving and transmitting messages were from 8 o'clock in the morning until 6 o'clock in the evening, that the message was not delivered for transmission until the office hours at Ninety-Six had closed, and that the same was not received at said office, until next morning when it was promptly delivered. The jury rendered a verdict in favor of the plaintiff for $375, and the plaintiff appealed, upon exceptions which will be reported.
The first question that will be considered is whether there was any testimony tending to show that the defendant waived the right to insist upon the office hours, mentioned in the defense.
G. M. Wilson, a witness for the defendant, and who was its agent at Ninety-Six at the time hereinbefore mentioned, thus testified: "
It will thus be seen that there was sufficient testimony to require the submission of the case to the jury upon this question, unless it should be held that the defendant was not liable for the acts of its agent in receiving and delivering messages after the regular office hours.
The agent was unquestionably acting within the scope of his employment. Therefore, even if his acts were in violation of the telegraph company's instructions, this would not absolve it from liability. Reynolds v. Witte, 13 S.C. 5, 36 Am. Rep. 678; Rucker v. Smoke, 37 S.C. 377, 16 S.E. 40, 34 Am. St. Rep. 758; Hutchinson v. Real Estate Co., 65 S.C. 75, 43 S.E. 295; Mitchell v. Leech, 69 8. S. 413, 48 S.E. 290, 66 L. R. A. 723, 104 Am. St. Rep. 811; Williams v. Tolbert, 76 S.C. 211, 56 S.E. 908; Brown v. Telephone & Telegraph Co., 82 S.C. 173, 63 S.E. 744.
The next question to be determined is whether his honor the presiding judge erred in allowing the plaintiff to introduce testimony as to the reasonableness of the office hours at Edgefield. In the first place, the circuit judge ruled that the question of reasonableness must be determined, with reference to the office hours at Ninety-Six, and not at Edgefield; and in the second place, even if there was error, it was not prejudicial, as the vital question was not whether the office hours were reasonable, but whether they were waived.
The next assignment of error relates to the refusal of the circuit judge to charge the defendant's request that there was no evidence that the suffering of the plaintiff was the direct and proximate result of the defendant's negligence. The exceptions raising this question must be overruled, as the record shows that there was testimony tending to prove such fact.
The last question for consideration is whether there was error on the part of the...
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