Wilhelm v. Western Union Tel. Co.

• Decision Date: 06 March 1912
• Citation: 73 S.E. 865,90 S.C. 536
• Parties: WILHELM v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

73 S.E. 865

90 S.C. 536

WILHELM v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

March 6, 1912

Appeal from Common Pleas Circuit Court of Chesterfield County.

Action by Louisa S. Wilhelm against the Western Union Telegraph Company. From a judgment for defendant on a directed verdict plaintiff appeals. Reversed.

Stevenson & Matheson, for appellant. Willcox & Willcox and Edward McIver, for respondent.

HYDRICK J.

Plaintiff brought this action to recover actual and punitive damages for alleged negligent and willful delay by defendant in the transmission and delivery of a telegram. The testimony introduced at the trial tended to prove the following facts and circumstances: Plaintiff was sued in the court of a justice of the peace at Monroe, N. C., by a firm of attorneys at law for a fee, which they alleged she owed them for professional services rendered in the preparation of a certain statement showing the cause and manner of her husband's death, which statement was asked for by the agent of a fraternal insurance order in which her husband was insured. It appears that these attorneys were familiar with the facts and circumstances connected with the death of her husband, because they had been employed to assist, and did assist, in the prosecution of the person who killed him. Therefore it seems that the agent of the insurance order applied to them for the statement. They in turn applied to plaintiff to know whether she wished them to prepare it. At the trial in the justice's court, she and her sister, Miss Cora Steen, testified that she refused to consent for them to do so until the attorney, who consulted her about the matter, assured her that there would be no charge for it. On the other hand, the attorney testified that she agreed to pay $25 for the preparation of the statement. The justice found in favor of Mrs. Wilhelm, and gave judgment accordingly. The attorneys appealed to the superior court where, according to the practice in North Carolina the case was tried de novo. About midday, on August 20, 1906, the case was set for trial on August 21, 1906, and plaintiff's father, who was looking after the matter for her, filed with the defendant's agent at Monroe, at 2:25 p. m., a telegram, addressed to his daughter, Miss Cora Steen, at Middendorf, S. C., where she was with the plaintiff, Mrs Wilhelm, saying: "Both come to-night. Get B. to stay at night." Plaintiff and her sister were expecting the message, and were ready to go, and made inquiry of the agent at Middendorf about it. Middendorf is a small station on the Seaboard Air Line Railway, about 90 miles from Monroe. Plaintiff's residence was about 150 yards from the station, which is a combined railroad and telegraph station at which the office is kept open until about 9 o'clock at night. It does not appear at what hour it opens in the morning, nor does it appear at what hour the office at Monroe opens or closes, nor whether there is direct connection between the two, or an intermediate relay station. It appears that plaintiff's father informed defendant's agent at Monroe of the importance of the message and the reasons thereof, and asked him to rush transmission and delivery which he promised to do. There were two trains upon which plaintiff and Miss Steen could have taken passage from Middendorf and reached Monroe in time for the trial. One left Middendorf about 8 o'clock p. m., August 20th, and the other about 8 a. m., August 21st. The message was not delivered until 9 a. m. on August 21st, too late for them to get to Monroe in time for the trial. The same witnesses testified in the superior court as in the justice's court, except plaintiff and Miss Steen. The result of the trial was a judgment against plaintiff for $25 and costs. Plaintiff and Miss Steen both testified that, if the telegram had been delivered in time, they would have gone to Monroe, and have testified the same as they had done in the justice's court. The testimony which was taken in the trials in North Carolina was introduced in this case. The defendant...