Tinsley v. Western Union Telegraph Co.

• Decision Date: 07 October 1905
• Citation: 51 S.E. 913,72 S.C. 350
• Parties: TINSLEY v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

51 S.E. 913

72 S.C. 350

TINSLEY v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

October 7, 1905

Appeal from Common Pleas Circuit Court of Laurens County; Watts Judge.

Action by Clarence Tinsley against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Ferguson & Featherstone and Evans & Finley, for appellant. Dial & Todd, for respondent.

JONES J.

This appeal is from the judgment on a verdict for $100, in an action for damages for mental anguish for alleged negligent and wanton failure to promptly deliver the following telegram: "Enoree, S. C., March 17, 1904. Richard Fuller, Mountville, S.C. My baby dead. Meet me with wagon at High Point. Bring Hugh Henderson. Clarence Tinsley." The message was received at the Enoree office about 9:30 a. m., and was transmitted from that office to Augusta at 1 o'clock p. m., and reached the Mountville office through another relay office at 3:25 p. m., and was not actually delivered until next day. Fuller did not live within the corporate limits of Mountville. He, however, some time later received notice of the message over the 'phone through another, and proceeded to make arrangements to go to High Point with a wagon, and arrived there about sundown. In the meantime the train bearing plaintiff, the corpse, and attendants reached High Point at 2:20 p. m. The weather was cold and windy. The remains reached plaintiff's mother's home, about six miles distant, some time after dark. The funeral was not had until next day.

1. The first exception alleges error in allowing plaintiff to testify as to how much money he had when he got to High Point, on the ground that the testimony is irrelevant. The irrelevancy of testimony is so largely left to the discretion of the trial judge that the judgment will not be disturbed unless it clearly appears to have been harmful to appellant. Watts v. Railroad Co., 60 S.C. 70, 38 S.E. 240. We fail to see how the testimony could injure appellant, even if irrelevant. But it was not wholly irrelevant. It was designed to show the situation of plaintiff, with respect to means of procuring other transportation, produced by the failure to have transportation for the corpse on arrival of the train as a result of the nondelivery of the telegram.

2. The second exception assigns error in some remarks made by the court in presence of the jury while making a ruling as to the admissibility of testimony. Plaintiff having testified as to the exposure to the weather at High Point during the delay there, defendant's counsel was seeking to show that there were houses of other people near the station where he might have resorted. The court at first, regarding the testimony incompetent, remarked: "It was the duty of the telegraph company to deliver and promptly transmit the message. It was not his business to go off hunting up people's houses," etc. He immediately afterwards decided to permit the testimony to be brought out, and directed the appellant's counsel to go ahead. It is objected that the remark of the court was a charge upon the facts and prejudicial to appellant. The case of State v Marchbanks, 61 S.C. 21, 39 S.E. 187, shows that such remark by the court during the progress of the trial is not a charge upon facts. The exception does not indicate wherein the remark was otherwise prejudicial.

3. The third exception alleges error in certain remarks made by the court during the examination in chief of defendant's witness. Defendant's counsel was endeavoring to show by his witness that defendant company transmitted the message as promptly as possible in view of the condition of the wires. One of the wires was down, and the circuit of the other wire was frequently interrupted from some unexplained cause, and this wire was at intervals being used by the train dispatcher and for railroad messages. Plaintiff's counsel objected to the witness stating anything...