Cameron v. Western Union Tel. Co.

• Citation: 74 S.E. 929,90 S.C. 503
• Parties: CAMERON v. WESTERN UNION TELEGRAPH CO.
• Decision Date: 04 March 1912
• Court: South Carolina Supreme Court

74 S.E. 929

90 S.C. 503

CAMERON v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

March 4, 1912

Appeal from Common Pleas Circuit Court of Lancaster County.

Action by W. W. Cameron against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

J Harry Foster, of Yorkville, for appellant. Williams & Williams, of Lancaster, Geo. H. Fearons, of New York City and Nelson, Nelson & Gettys, of Columbia, for respondent.

FRASER J.

This was an action for damages for mental anguish, alleged to have been suffered by the plaintiff, W. W. Cameron, on account of the alleged negligence of the defendant in its failure to transmit and deliver promptly a message to the plaintiff which would have enabled him to be present in the last illness and death of his brother, James Cameron, and deprived him of the consolation of his family in time of bereavement. It was not clear as to the exact message; it was either "Come at once," or, "Come at once, your brother very ill."

The evidence tends to show that Walter Cameron, the brother of the plaintiff, gave the message to a friend, Capt. J. R. Dickert, and requested him to telegraph the same to the plaintiff at Lancaster, S.C. Capt. Dickert called up the telegraph office over the telephone, and undertook to communicate with the defendant company over the telephone. The message was taken down by the defendant's operator as a message to W. W. Clemmons, instead of W. W. Cameron. This seems to have been the cause of the failure to deliver promptly.

The question now before this court arises on exceptions to the judge's charge. There are nine exceptions; but the appellant groups his exceptions under two heads, and cannot complain if this court adopts his classifications and considers 1 to 4 together, and exceptions 5 to 9 as one. We will first consider the second group.

1. The appellant assigns "error in the circuit judge in charging the jury as follows: 'The burden is upon the plaintiff to show by the preponderance of the evidence that the misunderstanding or error arises from the negligence of the telegraph company or its agents, who received the message."'

The appellant claims that proof of delay raises a presumption of negligence on the part of the telegraph company, and cites Hellams v. Telegraph Company, 70 S.C. 87, 49 S.E. 12, and Du Bose v. Telegraph Company, 73 S.C. 221, 53 S.E. 175, in support of the proposition. This, as an abstract proposition, is too well settled to be disputed.

Appellant also states correctly, by way of analogy, the presumption of negligence in injury to passengers and injury to stock. The burden of proof, to which his honor referred, was in reference to the receipt of the message.

When a plaintiff brings an action for damages for an injury to himself while a passenger, the burden of proof is on the plaintiff to show, or, in other words, the...