Mitchiner v. Western Union Tel. Co.

• Decision Date: 16 February 1905
• Parties: MITCHINER v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

50 S.E. 190

70 S.C. 522

MITCHINER v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

February 16, 1905

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

Action by D. R. Mitchiner against the Western Union Telegraph Company. Judgment for plaintiff. Defendant appeals. Reversed.

Geo. H Fearons, Evans & Finley, Frank B. Gary, and Wm. P. Green, for appellant. Wm. N. Graydon, for respondent.

JONES J.

The plaintiff brought action against defendant company for damages for mental anguish resulting from the alleged negligence and wantonness in failing to promptly deliver a telegram, and recovered judgment for $200, from which defendant now appeals.

The second, third, and sixth exceptions relate to the admissibility of testimony, and will be first considered. The second exception is as follows: ""Because his honor erred in permitting, over defendant's objection, the plaintiff's attorney to ask the plaintiff the following question: 'I asked Miss Matthews, when she was on the stand, if she told you that morning, at the time you all were discussing the matter, if she stated to you that morning the reason she did not get the message was the wires were not working properly, and that she had sent to Greenwood for a man to fix them;' and in permitting the plaintiff to answer, 'Yes, sir; I went to Miss Matthews, and she seemed to regret it very much, and said it would not only involve her, but the man who was in charge of the wires; and that she had tried to get him the day before to come up and fix them, but he had not come.' The said question and answer being, in effect, to contradict the witness upon an immaterial point, and was not proper evidence in reply; and on the further ground that, the question and answer not being a part of the res gestae, was hearsay." The testimony was admissible to contradict Miss Matthews, who was defendant's operator at Abbeville, S. C., the foundation having been laid, and the testimony relating to the material matter, the delay of the message and its cause. The ruling is supported by the case of Mason v. R. R. Company, 58 S.C. 75, 36 S.E. 440, 53 L. R. A. 913, 79 Am. St. Rep. 826.

The third exception assigns error in allowing plaintiff's witness Hill to detail a conversation he had over the wires with the agent of defendant in Atlanta after the delivery of the telegram. Plaintiff's counsel, having advised the court that he desired to prove by this witness that the agent in Atlanta admitted to him the time the message was received in Atlanta, allowed the question; but no harm to defendant resulted, as the witness did not remember the conversation.

The sixth exception alleges error in allowing the witness Bell to testify that the quarantine was of force in the town of Lumpkins, Ga., while plaintiff's wife was there, the statute or ordinance establishing the same being the best evidence. If he knew the fact that a quarantine was being enforced in his town, he could, of course, state that fact, the question being as to the existence of a quarantine which was being actually enforced, and not as to the authority under which it was enforced.

We next notice the fourth exception, which complains of error in charging the jury as follows: "The burden is on it [defendant] to establish it--that the injury was due to plaintiff's negligence--by the preponderance of the evidence; and if it has established to your satisfaction that the plaintiff was negligent, and that it was due to his negligence solely--the injury--as a matter of course, he cannot recover." It is claimed that this charge was erroneous "in that, if plaintiff's negligence was the proximate cause of the injury, he should not have had a recovery even though such negligence was not the sole cause of such injury. It is further submitted that under the general denial defendant was entitled to make proof of plaintiff's negligence in rebuttal of the testimony as to defendant's negligence, and that, in order to prevent a recovery, it was not necessary to prove such negligence on the part of the defendant by the preponderance of the evidence, but it was sufficient if it evenly balanced the proof as to defendant's negligence." This exception must be...