Smith v. Western Union Tel. Co.

• Decision Date: 11 July 1905
• Citation: 51 S.E. 537,72 S.C. 116
• Parties: SMITH v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

51 S.E. 537

72 S.C. 116

SMITH v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

July 11, 1905

Appeal from Common Pleas Circuit Court of Cherokee County; Gage Judge.

Action by Joanna Smith against the Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. Reversed.

Geo. H Fearons, Evans & Finley, and J. H. Marion, for appellant. Hart & Bell, for respondent.

JONES J.

The complaint in this action was brought to recover damages for mental anguish for alleged negligent and willful failure to promptly deliver the following message: "Joanna Smith Gaffney, S.C. If you want to see Hannah alive, come at once. [Signed] John Corrie." This appeal comes from the judgment, on verdict, for $100 in favor of plaintiff. The complaint alleged that by reason of the failure to promptly deliver said message the plaintiff was deprived of seeing and being with her sister before her death, and of accompanying her remains from the city of Asheville, N. C., to Gaffney, S. C., and was thereby subjected to great mental anguish and suffering. The message was filed with the defendant company at Asheville, N. C., on Sunday, November 8, 1903, to be transmitted to plaintiff at Gaffney, S.C. It was received by the Gaffney office at 4:50 p. m., Sunday. The office hours at Gaffney on Sundays were from 8 a. m. to 10 a. m., and from 4 p. m. to 6 p. m. The messenger made effort to deliver the telegram, and returned to the office with the message undelivered at 6 p. m., when the office was closed and the message left therein for delivery the next day. About 15 minutes after the closing of the office, the messenger boy, on his way home, obtained information as to the place of residence of the plaintiff but, because the office was closed, did not make any further attempt to deliver on that day. The message was delivered the next day, Monday, between 8 and 9 a. m. The plaintiff's sister died a short while before 12:55 p. m., November 9, 1903. Train 35 passed Gaffney for Spartanburg at 11:53 Sunday night, and train 39 passed Gaffney for Spartanburg at 9:14 Monday morning. These trains connected at Spartanburg with the train for Asheville, due to leave Spartanburg at 10:35 a. m. and arrive at Asheville at 1:50 p. m.

1. The first question presented by the exceptions is whether the circuit court erred in modifying defendant's third request by charging the jury that, when a telegraph company opens its office for business on Sunday, it must be shown that its office hours on that day are reasonable. Defendant's third request was as follows: "These hours need not be the same on Sunday as on other days of the week. A telegraph company may not open its office for business at all on Sunday, and, when it does, may limit these hours to a very small part of the usual time devoted to the transaction of business on other days." With reference to this request, the court charged the jury in these words: "Sunday is a day of rest, and a telegraph company may close its office and stay closed for the day but, if it does open its office for business, it must have reasonable hours." No breach of duty should be predicated upon a failure to do what is forbidden by law, but there is nothing in the law to prevent a telegraph company from undertaking to transmit and deliver a message like the one in question on Sunday. Our statute (section 500, Cr. Code) provides as follows: "No tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any wordly labor, business or work of their ordinary callings upon the Lord's Day (commonly called the Sabbath) or any part thereof (work of necessity or charity only excepted); and every person being of the age of fifteen years or upwards offending in the premises shall, for every such offense, forfeit the sum of one dollar." So that, if this statute be held to prohibit an operator or messenger from delivering ordinary social and business telegraphic messages on Sunday, it would...