Barer v. Western Union Tel. Co

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WOODS
• Citation: 69 S.E. 151,87 S.C. 174
• Parties: BARER v. WESTERN UNION TELEGRAPH CO.
• Decision Date: 25 October 1910

69 S.E. 151
(87 S.C. 174)

BARER
v.
WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina.

Oct. 25, 1910.

[69 S.E. 151]

1. Telegraphs and Telephones (§ 66^*)—Delivery of Messages—Delay—Presumptive Negligence.

Delay from 4:38 p. m. until 8 a. m. in delivering a death message raises a rebuttable presumption of negligence.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. § 61; Dec Dig. § 60.*]

2. Negligence (§ 136*)—Jury Questions.

Generally, when any fact raises a presumption of negligence, it stands throughout the trial, to be weighed by the jury with the rebutting evidence, making a nonsuit or directed verdict improper; but when defendant explains that fact so clearly as to destroy the presumption, and when no reasonable man could avoid the conclusion that the presumption was destroyed, a nonsuit or verdict for defendant should be ordered.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 277, 278; Dec. Dig. § 136.*]

3. Telegraphs and Telephones (§ 73*)—Delivery of Messages — Delay—Negligence —Jury Question.

Under the evidence, held error to direct a verdict for a telegraph company, sued for delay in delivering a death message.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dec. Dig. § 73.*]

Jones, C. J., dissenting.

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;...