Roberts v. Western Union Tel. Co.
| Citation | 53 S.E. 985,73 S.C. 520 |
| Parties | ROBERTS v. WESTERN UNION TELEGRAPH CO. |
| Decision Date | 16 March 1906 |
| Court | United States State Supreme Court of South Carolina |
Appeal from Common Pleas Circuit Court of Cherokee County. Frank B Gary, Special Judge.
Action by Jennie Roberts against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed.
Geo. H Ferrons, Evans & Finley, and J. C. Jeffries, for appellant. Butler & Osborne and E. A. Trescot, for respondent.
The plaintiff recovered judgment for mental anguish arising from the failure of the defendant to deliver to her promptly the following telegram:
1. The plaintiff lived in Blacksburg, S. C., and the telegram referred to the illness of her sister at Toccoa, Ga. The defendant's Sunday office hours at Blacksburg were from 8 to 10 a. m. and from 4 to 6 p. m., but the operator was also railroad agent, and, being at the office as railroad agent, he received this message at 2 o'clock p. m. on Sunday, January 24, 1904. It was not actually delivered until about 8 o'clock p. m. on Monday. The suffering alleged was for deprivation of the privilege, of which plaintiff would have availed herself, of being with her sister "before and at her death, and of attending her burial and funeral, and of being with her family in the bereavement and during said funeral." The last train on which it would have been possible for plaintiff to reach her sister's bedside before her death, which occured at 10 o'clock p. m. on Sunday, passed Blacksburg at 2:30 p. m The defendant owed the plaintiff no duty to deliver before 4 o'clock its regular afternoon office hour. Bonner v. Tel. Co., 71 S.C. 303, 51 S.E. 117. It therefore was not responsible for the plaintiff's failure to be with her sister at and before her death, and the claim as to that alleged wrong need receive no further notice.
"2. The operator testified he sent a messenger to deliver the telegram as soon as it was received. The messenger's evidence was that he could get no answer to repeated knocks at plaintiff's front door, and the effort was made to prove she was away from home on Sunday. The plaintiff, on the other hand, testified she was at home and knew of no effort to find her. There was some evidence that the telegram was again sent to plaintiff's residence at 3 o'clock the next day, and not delivered because of her absence. The circuit judge granted a nonsuit as to the cause of action for willful or wanton wrong, but refused it as to the cause of action for negligence. The appellant's position that there was only one cause of action, though both negligence and willfulness and wantonness were alleged, cannot be sustained, for it has been finally settled otherwise. When there is an entire failure of proof to support the cause of action for punitive damages, nonsuit should be granted as to that cause of action, leaving the cause of action for negligence to be submitted to the jury. Machen v. Tel. Co., 72 S.C. 256, 51 S.E. 697.
There was certainly evidence to go to the jury tending to prove that the plaintiff could and would have attended the funeral services of her sister, which were held about 4 o'clock Monday afternoon, if the telegram had been promptly delivered, and the defendant's motion for nonsuit as to actual damages was properly refused. It is true she did not go when she did receive the message; but it was for the jury to say whether, from its contents and the time which had elapsed, she then had good reason to think she would be too late. It is sometimes difficult to draw the line between a scintilla of evidence and no evidence on the subject of willfulness, wantonness, or recklessness. It was held in Young v. Telephone Co., 65 S.C. 93, 43 S.E. 448, Machen v. Telegraph Co., supra, and Willis v. Telegraph Co., 69 S.C. 531, 48 S.E. 538, 104 Am. St. Rep. 828, that long delay, in the absence of effort to deliver, is evidence to go to the jury on the question of punitive damages. But here there was undisputed evidence of some effort to deliver. It may be the effort was not sufficiently vigorous to repel the imputation of negligence; but, on the whole, we think the circuit judge was right in holding the mere delay was not sufficient to go to the jury on the issue of willfulness, wantonness, or recklessness, in view of the evidence of efforts to deliver. The exceptions of both plaintiff and defendant as to the nonsuit are overruled.
The defendant complains that the circuit judge, after granting the nonsuit as to punitive damages, charged the jury "If the jury is satisfied that the message sued upon was kept by the...
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