Western Union Telegraph Co. v. McLaurin

• Decision Date: 28 November 1892
• Citation: 70 Miss. 26,13 So. 36
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH CO. v. W. K. MCLAURIN

13 So. 36

70 Miss. 26

WESTERN UNION TELEGRAPH CO. v. W. K. MCLAURIN

Supreme Court of Mississippi

November 28, 1892

October 1892

FROM the circuit court of Warren county, HON. JOHN D. GILLAND Judge.

One Metcalf killed Dwyer, in the town of Cleveland, Miss. on Sunday, July 19, 1891. His preliminary trial before a magistrate was fixed for ten o'clock the next morning. One Julias A. Robinson, a lawyer living at Cleveland, at four o'clock Sunday afternoon, delivered to the operator of appellant at that place a message, addressed to appellee, W K. McLaurin, a lawyer, at Vicksburg, Miss. in the following words: "Metcalf killed Dwyer. Come on first train. Good fee for defense."

The sending of the message was authorized by Metcalf, who desired the services of McLaurin in his defense at the preliminary trial the next morning. McLaurin was in Vicksburg, and if the message had been promptly delivered he could have gone to Cleveland on the night train; but it was not delivered until the next morning, and then it was too late to get a train to reach Cleveland in time for the hearing. He went, however, by a freight-train, but reached Cleveland too late for the trial. He testified that Metcalf was offended because of his failure to arrive in time, and refused to employ him. He had waived examination, and was admitted to bail before McLaurin arrived. Robinson testified that he refused, because of his want of experience, to represent Metcalf at the hearing. The telegraph company kept open an office on Sunday at Cleveland and at Vicksburg, and was paid for the transmission of the message in question. It does not appear that the operator was informed that the trial would take place the next morning, or knew that Metcalf had authorized Robinson to send the message, or that Metcalf would be unrepresented if McLaurin should not reach Cleveland in time. McLaurin sued the company for $ 25, the statutory penalty for failure to deliver the message, and also for $ 150, damages for the loss of the fee on account of such failure. The defendant prevailed in the justice court, and McLaurin appealed to the circuit court. On the trial in that court, the above facts substantially were shown, and the following instructions were given on behalf of the plaintiff:

"If the jury believe from the evidence that the delivery of said telegram was a work of necessity, then it was the duty of the defendant company to use reasonable diligence to deliver the telegram read in evidence, to the plaintiff; and if it failed in this, the plaintiff is entitled to a verdict for such damages as the jury believes, from the evidence, he has sustained, in addition to the penalty provided by law, which is $ 25.

"If the jury believe, from the evidence, that the transmission and delivery of said telegram was a work of necessity, and that the defendant company received the telegram read in evidence, at its office in Cleveland, Miss. at or about the hour of four o'clock P.M., on the nineteenth day of July 1891, and neglected to transmit and deliver the same, within a reasonable time, to the plaintiff, W. McLaurin, at Vicksburg, without good and sufficient excuse, then the plaintiff is entitled to a verdict for the statutory penalty of $ 25, without regard to the amount of the damage sustained; and any and all additional damages which the jury may believe, from the evidence, the plaintiff has sustained.

"The defendant is charged, in law, with notice of all the telegram shows upon its face, and of its importance, if such fact appears therefrom, and the necessity, if any, for immediate delivery, if such necessity appears therefrom.

"If the defendant was negligent in the delivery of the telegram, and if such delivery was a work of necessity, the plaintiff is entitled to a verdict. Negligence is the want of ordinary care. What would be ordinary care in one case might not be in another; and in determining whether defendant used due care or not from the reception of the telegram until its delivery, the jury may take into consideration the character of the telegram, the distance from Cleveland to Vicksburg, the location of plaintiff's office and bed-room, and all other facts established by the evidence which will shed any light on this subject."

A motion to rule out all the testimony and instruct the jury to find for defendant, having been overruled, the following instruction was given at the instance of defendant:

"The court instructs the jury for defendant, that, as the telegram to plaintiff was sent on Sunday, he cannot recover from defendant, unless they believe, from the evidence, that it was a work of necessity, and, unless they believe, from all the evidence in the case, that it was apparently necessary for Metcalf to have the services of McLaurin on Monday, then they will find a verdict for the defendant."

Verdict and judgment in favor of plaintiff for the sum of $ 125, damages, and $ 25, statutory penalty. Motion for new trial overruled. Defendant appeals.

Affirmed.

Mayes & Harris, for appellant.

1. It does not appear that any of the circumstances attending the transaction were made known to the company. It was not informed as to the time of the trial, or that Metcalf had authorized the sending of the message, or that he would be unrepresented if McLaurin failed to go.

2. The transaction occurred on Sunday, and neither Metcalf nor McLaurin have any legal remedy. The case does not come within the exception to the Sunday statute, § 2949, code 1880. Railroads and steam-boats are expressly excepted, but telegraph companies are not. Therefore, all business done by them on Sunday is in violation of law, unless it comes within the language of the statute--"other work of necessity or charity."

Contracts made on Sunday are void. 5 Lawson's Rights, Rem. & Prac. p. 4025, § 2411. Such is the law of this state. 7 How., 14; 7 Smed. & M., 389; 24 Miss. 9; 26...