Doster v. Western Union Tel. Co.

• Decision Date: 24 April 1907
• Citation: 57 S.E. 671,77 S.C. 56
• Parties: DOSTER v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

57 S.E. 671

77 S.C. 56

DOSTER v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

April 24, 1907

Appeal from Common Pleas Circuit Court of Lancaster County; Klugh Judge.

Action by Robert W. Doster against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. H Fearons, Evans & Finley, and Williams & Williams, for appellant. Greene & Hines, for respondent.

WOODS J.

This action was brought by the plaintiff, Robert W. Doster, to recover $1,500 damages for the alleged willful, careless, and reckless delay of defendant telegraph company in transmitting the following message received at its office at Monroe, N C., from John Richardson, plaintiff's son-in-law, on July 22, 1905, directed to Lee Hall, Ft. Mill, S. C.: "Phone Robert Doster; baby died this evening come." The message was filed at Monroe office at 7:20 o'clock and eight minutes later was transmitted to Charlotte, to be sent to Ft. Mill; there being no direct line to that place. The Ft. Mill office closed at 7:30 o'clock p. m., except on Sundays, when the office hours were from 8 to 10 in the morning, and 4 to 6 in the evening. The Charlotte office, immediately upon receipt of the message, tried to get Ft. Mill, but failed. On the next day, Sunday, as appeared from the record of the Charlotte office, Charlotte called Ft. Mill at 8 a. m., 8:35 a. m., 8:41 a. m., 10 a. m., 10:20 a. m., 10:50 a. m., and finally got the message through at 11:09 a. m. The business of the Ft. Mill office being small, the telegraph agent was also agent for the railroad and express companies. On the morning in question, after attending to his duties connected with two passenger trains which arrived between 8 and 10 o'clock, the agent repaired to the freight office, about 40 yards across the railroad, in another building, in order to do some clerical work, and thus failed to hear the calls from Charlotte. The message was delivered to Hall at 11:20. Doster lived about six miles from Ft. Mill, and, in order to reach him, Hall testified that at 12:05, as soon as the phone office opened, he phoned the message to Culp. Doster did not have a phone, who replied that Doster's son was at his house and would carry it at once. Culp testified that it was 12:30 when he received the message; that he immediately put Doster's son on a mule to carry the message to his father, who lived about a mile and a half away. Doster testified that it was some time after 12 o'clock when he received the message; that as soon as he could eat, feed his mule, and get ready, he started for Monroe, going by Culp's to make sure Monroe was the place to which he was called; that although he drove very rapidly, and the funeral was put off as long as possible, he arrived too late to attend the burial of his grandchild. On account of his inability to attend the funeral, and to be with his daughter, who was sick, plaintiff alleged that he suffered great mental anguish. The case was heard before Judge Klugh at the March, 1905, term of court, and resulted in a verdict of $250 "punitive damages" for the plaintiff. A new trial was refused, and defendant appeals.

1. In the first and second exceptions, the defendant complains of error in allowing Lee Hall, the person to whom the telegram was sent for transmission over the telephone to plaintiff, to testify that he would have phoned promptly on receipt of the message, and in allowing the witness Culp, to whom Hall telephoned the message to be communicated to plaintiff, that he would have sent it to the plaintiff immediately. The complaint alleges: "If said telegram had been delivered to plaintiff's agent, the said Lee Hall, within the time it should have been delivered to him, plaintiff would have received it in ample time to have attended the funeral of his grandchild in Monroe, N. C., on July 23, 1905, but that, although he started for the said city of Monroe as soon as he received said message, he did not arrive there until after his grandchild was buried." Testimony of this kind in support of allegations that but for the negligence of the defendant the message would have been received and promptly acted upon is admissible from necessity, for ordinarily there is no other way to prove the negligence of the defendant resulted in damage.

2. The third exception rests on the admission of testimony from plaintiff that he was fond of his grandchildren. This was not objectionable as proof of abnormal sensibility or peculiar individual temperament unknown to defendant, under the case of Willis v. Tel. Co., 69 S.C. 531, 48 S.E. 538, 104 Am. St. Rep. 828. On the contrary, it was nothing more than evidence that the plaintiff was a normal man. Roberts v. Tel. Co., 73 S.C. 523, 53 S.E. 985.

3. We think the circuit judge erred in rejecting evidence as to the amount of the receipts at the Ft. Mill office, because the small business would be a proper factor to enter into the consideration of the jury in determining whether negligence or willfulness or wantonness was to be inferred from the delay. These are relative terms. Where the income at any office is so small that it can be made self-supporting only by uniting in one person the duties of telegraph operator and railroad and express agent, it is reasonable and fair that the jury should consider whether the agent kept the proper balance of diligence in the discharge of the three lines of duty devolving upon him, or gave one undue attention, to the neglect of another. This is nothing more than the application of the common-sense rule that there can never be...