Obrazy na stronie
PDF
ePub

no evidence of wantonness or recklessness; (2) that the injuries were caused by the act of a third person. There being evidence on both of these issues, this court cannot interfere. Miller v. Railway, 69 S. C. 116, 48 S. E. 99; Wilson v. Assurance Co., 51 S. C. 549, 29 S. E. 245, 64 Am. St. Rep. 700.

4. The fifth exception alleges error on the part of the circuit court in charging that it is prima facie negligence on the part of a carrier to fail to stop its cars at the usual stopping place. It is the duty of railroads to stop their trains at their stations. Civ. Code 1902, § 2134: Cooper v. Railway, 61 S. C. 345, 39 S. E. 543. It has been held in a number of cases that failure to give the signals at crossings as required by statute is negligence per se. Bowen v. Railway, 58 S. C. 223, 36 S. E. 590; Smith v. Railway, 53 S. C. 121, 30 S. E. 697. We are unable to see that this statute is more mandatory than the one now under consideration, or that one duty is superior to the other. Hence the only logical and consistent view is that it is negligence per se for defendant to fail to stop its rain at its station. What is stopping at a station is a question which must be left to the jury. Cooper v. Railway, supra. Likewise what would constitute the usual stopping place must be a question for that body. It may include a greater or a less distance, according to the circumstances. The stopping place is the station, and if the jury find that the carrier did not stop at the station then prima facie it is negligent. This contention is overruled.

It is the judgment of this court that the Judgment of the circuit court be affirmed.

SMITH v. WESTERN UNION TELEGRAPH

CO.

(Supreme Court of South Carolina. July 13, 1907.)

1. TELEGRAPHS-DELAY IN DELIVERY-NOTICE OF CLAIM.

Where a telegraph blank stipulates that a claim shall be presented in writing within 60 days, suit within that time for negligence in delivery of message is a sufficient presentation.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Telegraphs and Telephones, § 42.] 2. APPEAL-CONFLICTING EVIDENCE.

Where the evidence was conflicting as to the efforts of a messenger boy to find the addressee of a telegram, a judgment finding negligence will not be disturbed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3935-3937.] 3. TELEGRAPHS-DELAY IN DELIVERY.

Where a telegram, delayed in delivery, announced a death, and requested an answer as to whether addressee could come, he has a cause of action, there being nothing to show that he could not have gone to the funeral.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 33.] 4. SAME.

A telegraph company is not liable for delay in delivering telegram received after closing hours, if the office hours are reasonable, and the message so received may be transmitted with

[blocks in formation]

Where, in an action against a telegraph company for negligence and wantonness in the transmission of the telegram, evidence is received as to the wealth of the company, it is not reversible error, where a nonsuit is granted as to the cause of action for wantonness, to fail to instruct not to consider such evidence on the cause of action for negligence, in the absence of a request therefor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 628.]

Appeal from Common Pleas Circuit Court of Kershaw County; Hydrick, Judge.

Action by C. L. Smith against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. H. Fearons and Nelson & Nelson, for appellant. Clark & Von Fresckow, for respondent.

WOODS, J. The plaintiff recovered judgment for mental anguish, alleged to have been produced by the negligent delay of the defendant in delivering the following telegram, sent by plaintiff's father, concerning the death and burial of his brother: "Apex, S. C., Oct. 4. C. L. Smith, Camden, S. C. Anderson dead; be buried here tomorrow; answer if you can. Rufus Smith." The issue of punitive damages was eliminated by an order of nonsuit, from which the plaintiff has not appealed.

1. The main contention of the defendant is that a nonsuit should have been ordered, as to the whole case, on several grounds submitted to the circuit judge. The first was the failure of the plaintiff to show that any claim for damages was presented in writing within 60 days after the filing of the message. This point might be dismissed with the remark that the stipulation relied on does not appear on the telegram as printed in the record. But as the remarks of the circuit judge, in considering the motion, show that it was before the court, we will not refuse to pass on it. The suit was brought within 60 days after the alleged breach of duty and consequent damage to the plaintiff, and the question is whether this was a sufficient compliance with the requirement that the claim should be presented within 60 days. While the requirement that the claim for damages shall be presented within 60 days has been held valid, because essential to the proper investigation of claims, nothing should be added to the meaning of the language which the company has itself employed in imposing the condition. The general rule is that the liability attaches by operation of law as soon as damage to the plaintiff results from the negligence of the defendant, and there is nothing in the stipu

lation to the contrary. The stipulation is, if the person injured fails to make claim under the liability within 60 days, the liability which had been incurred comes to an end and the cause of action is gone. But the suit is a presentation of the claim in writing, and under the stipulation preserves the liability. The defendant's counsel relied on the case of Western Union Telegraph Company v. Yopst (Ind.) 11 N. E. 16, in which the court takes his view; but the weight of authority supports the conclusion we have reached. Phillips v. Telegraph Co., 95 Tex. 641, 69 S. W. 63; Telegraph Co. v. Trumbull, 27 N. E. 313, 1 Ind. App. 121; Telegraph Co. v. Mellon, 33 S. W. 725, 96 Tenn. 66; Telegraph Co. v. Henderson, 18 Am. St. Rep. 148, 89 Ala. 510, 7 South. 419; Bryan v. Telegraph Co., 45 S. E. 938, 133 N. C. 603; Shearman and Redfield on Negligence, § 554; Thompson on Elec. § 256.

2. The defendant relied on two additional grounds in the motion for nonsuit: "Because there is no evidence which shows or tends to show any damage, actual or nominal, of which the failure to deliver the telegram in question was the proximate cause, which would entitle the plaintiff to recover under the mental anguish act;

because the testimony does not show any negligence on the part of the defendant in its efforts to deliver the telegram." The message was received at Camden at 2:47 p. m., and delivered the next day. There was undisputed evidence of great diligence on the part of the operator to locate the plaintiff and deliver the telegram. The negligence, if any, was on the part of the messenger boy. The plaintiff was living with Mrs. Joyner, two blocks from the telegraph office; and the operator in the afternoon directed the messenger to try to find plaintiff there. He failed to go to the Joyner house, saying he could not find it, but the witness McCain testified that he told him where it was. The messenger denied McCain's statement, but clearly the evidence made a question of fact for the jury as to his negligence. The position that there was no evidence of actual damage to the plaintiff was equally untenable.

3. When plaintiff received the belated telegram, he replied: "Message received too late; wife sick; will come to see you as soon as she is better." There is nothing in this message to indicate that plaintiff would not have gone to the funeral of his brother, notwithstanding his wife's illness, had he received the message in time; and he testified he would have gone,

4. The defendant next contends the circuit judge erred in not charging the following request, without modification: "If the jury find the defendant used due diligence and could not locate the plaintiff, C. L. Smith, and asked the sender for some address, and such address was not received

until after closing hour, then the company was under no duty to deliver the message until within a reasonable time after the opening hour the next day, provided such opening and closing hours were reasonable. And if the company should, under such state of facts, deliver the message within a reasonable time after the opening hour next morning, then the jury should find for the defendant." After reading the request to the jury, the circuit judge said: "Now, with regard to that request, I charge you this, that the telegraph company has the right to establish reasonable rules for the conduct of its business, has the right to establish reasonable office hours, and, if the office hours established as shown by the testimony are reasonable, then the company is not bound to either deliver, send, or receive a message after office hours, unless, by a course of dealing, by a custom, it has so conducted itself as to have waived the office hours which it established. That is a question of fact for the jury. I will read it to you. If the office hours established for an office are reasonable, the company is under no duty to transmit messages except during such hours, and a message offered for transmission, after the close of such office, at the office of destination, may be transmitted within a reasonable time after the office is open next morning. The failure of the agent to observe the office hours when habitual may be shown in evidence as indicating that no rule on the subject prevails or was enforced; but proof merely of the occasional transmission or delivery will not be sufficient to establish waiver of the

regulation. You see, an occasional violation of office hours, sending, receiving, or delivering messages out of office hours, occasionally, would not be sufficient proof to show waiver of office hours; but it must be habitual, and it is for the jury to say whether or not it is so habitual as to amount to waiver of office hours." The charge was in accord with the opinion expressed in Bonner v. Telegraph Co., 71 S. C. 303, 51 S. E. 117, and Harrison v. Telegraph Co., 71 S. C. 386, 51 S. E. 119.

5. The defendant charges the circuit judge erred "in not instructing the jury that they were not to consider the testimony introduced, as to the wealth of the company, in granting a nonsuit as to the cause of action based upon winul tort, the error being that it tended to mislead the jury and to lead them to believe that they could, on account of the wealth of the company, increase their verdict for mere negligence; whereas, such testimony could only apply to the cause of action based on willfulness and wantonness, and the jury should not have been so instructed." Testimony was received as to the wealth of the defendant, which defendant's counsel concedes was competent, before the cause of action resting on the alle

gations of willfulness and wantonness had been disposed of by nonsuit. No request

having been made for an instruction that this evidence could not be considered under the cause of action for negligence, the omission of the court to give instruction cannot avail defendant. Jennings v. Manufacturing Co., 72 S. C. 420, 52 S. E. 113, and authorities cited.

The judgment of this court is that the judgment of the circuit court be affirmed.

STATE v. JONES et al.

(Supreme Court of South Carolina. July 16, 1907.)

1. DISTURBANCE OF PUBLIC ASSEMBLAGE-RELIGIOUS WORSHIP-EVIDENCE.

Where there was evidence that a congregation was broken up by a riot about 40 feet from the church, the parties engaged therein were guilty of disturbing public worship.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Disturbance of Public Assemblage, §§ 1-5.]

2. CRIMINAL LAW-DISTURBING PUBLIC WOR

SHIP-JURISDICTION-EVIDENCE.

On a trial for disturbing public worship, the fact that one of the witnesses was struck by a plank is insufficient to show that weapons were actually used so as to make the offense beyond the jurisdiction of magistrate. 3. SAME-HEARSAY EVIDENCE.

Declarations by a participant during the progress of a riot are not hearsay.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 809.]

4. DISTURBANCE OF PUBLIC ASSEMBLAGE.

Evidence as to the conduct of parties arrested for disturbing religious worship by a riot after congregation has dispersed is competent. 5. SAME-PUNISHMENT-EXCESSIVE FINE.

Sentences of $30 and $17.50 for disturbing public worship are not excessive.

Appeal from General Sessions Circuit Court of Anderson County; Watts, Judge.

Berry Jones and others were convicted of disturbing religious worship. From an order modifying the judgment of a magistrate, defendants appeal. Affirmed.

Martin & Earle, for appellants. Julius E. Boggs and E. M. Rucker, Jr., for the State.

WOODS, J. The defendants were convicted before a magistrate of disturbing a religious congregation. The sentence of the magistrate was as follows: "Berry Jones, Andrew Jones, Adger Davis, $50 each or 30 days. Cephas Davis, Jim Jordan, Tom Mauldin, $25 each or 30 days." On appeal the fines of $50 and $25 were held excessive and reduced to $30 and $17.50. The other grounds of appeal were overruled. The defendants, Berry Jones, Tom Mauldin, and Jim Jordan, then appealed to this court.

1. There is no ground to ask for reversal for lack of evidence to support the charge

of willful disturbance of a religious congregation. There was evidence of a congregation engaged in worship being disturbed and broken up by a riot, about 40 feet from the church, in which each of the appellants were active participants. The disturbance was a result so certain to follow the riot that it must be held to have been within the contemplation and intention of all who participated.

2. The position is taken that the judgment should be reversed, because "the magistrate did not have jurisdiction of the offense herein; it not being affirmatively shown that no weapons were actually used and no wounds inflicted." The part taken by the appellants was detailed at length by the witnesses, and there was no evidence of the use of an instrument by any of them, which the magistrate and circuit court as a matter of law must have held to be a weapon. One of the witnesses, it is true, testified that the defendant, Berry Jones, hit him three times with "a piece of plank." The Century Dictionary gives these comprehensive definitions of the word "weapon": "(1) Any instrument of offense. Anything used, or designed to be used, in attacking an enemy, as a sword, a dagger, a club, a rifle, or a cannon. Any object, particular, or instrumentality, that may be of service in a contest or struggle, or in resisting adverse circumstances, whether for offense or defense. Anything that may figuratively be classed among arms." A piece of plank might be so large as to fall clearly within the definition; but obviously it might be so small as to be useless for attack or defense. As the witness said nothing of any inconvenience resulting from being hit three times with this piece, there was good reason for the magistrate and circuit court to regard it not a weapon. The position taken the exception that the use of weapons should be presumed in order to make out the greater offense and oust the jurisdiction of the magistrate-is obviously without support.

3. Adger Davis was one of the defendants, and we are at a loss to understand on what ground his remark to Moses Chapman, made while the riot was in progress, could have been excluded as hearsay.

4. The position that testimony as to the continuation of the riotous conduct of the parties after the congregation had left the church should have been excluded cannot be sustained. Evidence as to the entire disturbance was competent to show the gravity of the crime.

So far from the reduced sentences being excessive, as the appellants allege, they have reason to be grateful for the clemency of the circuit judge.

The judgment of this court is that the judgment of the circuit court be affirmed.

DEMPSEY v. WESTERN UNION TELEGRAPH CO.

(Supreme Court of South Carolina. July 23, 1907.)

1. TELEGRAPHS-DELAY IN DELIVERY-PLEADING.

In an action against a telegraph company for delay in delivering a telegram, allegation that "notwithstanding the defendant had every reason to know the message was important" is sufficient to apprise defendant of plaintiff's intention to prove notice of reasons why message was important.

2. SAME.

Whether one subjected to damage by the negligence of a telegraph company in delivering a message used all reasonable means to minimize his mental suffering is for the jury. 3. SAME-NOTICE OF DAMAGES.

It cannot be said, as a matter of law, that on a failure of a telegraph company to deliver a telegram "Will be to Perry on morning train; meet me there❞—resulting exposure and sickness could not have been anticipated.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, 88 64, 74.] 4. TRIAL-ERROR IN INSTRUCTION-CURE BY OTHER INSTRUCTION.

An instruction that punitive damages could be awarded for failure to deliver a telegram is not reversible error, when followed by an instruction that it could only be given on proof of willfulness.

[Ed. Note. For cases in point. see Cent. Dig. vol. 46, Trial, §§ 703-705, 718.] 5. SAME-WILLFULNESS.

Unexplained delay in delivery of a telegram for nearly 17 hours raises the question of willfulness.

6. TRIAL-INSTRUCTIONS.

Where the judge gave a charge in general and comprehensive terms covering the law of the case, and no requests were made for a more definite statement thereof, no error is shown. [Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 628.]

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

Action by A. R. Dempsey against the Western Union Telegraph Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Jno. R. Bellinger, for appellant. J. F. Carter, for respondent.

WOODS, J. A statement of the facts alleged in the complaint is necessary to an understanding of the appeal. December 28, 1905, was the day appointed for the marriage of plaintiff at the residence of Roland Williams near Wagner, S. C. On December 27th, while on his way from his home at Midway to meet the appointment, the plaintiff became so ill that he was obliged to stop over at Bamberg. Having then missed the only train which would have taken him direct to Wagner by the hour appointed, he delivered by the hand of his agent, G. H. Smoak, to the defendant's agent at Bamberg, for transmission, this message: "Number I Rx. Sent by G. Received by W. Check 10, paid. Received at 6:20 p. m. Check 12-27, 1905. Dated Bamberg, S. C.

To Roland Williams, Wagner, S. C. Will be to Perry on morning train; meet me there. A. R. Dempsey." When Smoak handed in the message, he offered to pay any extra charge for sending the message to the home of the addressee; but the agent declined the offer and agreed to deliver the message promptly. The purpose of the telegram was to get Roland Williams to meet plaintiff at Perry's, so that he might be at the appointed place at the time fixed for the marriage. The allegations as to the defendant's notice of the importance of the telegram, the failure to deliver, and the damage which ensued are thus made: "That, notwithstanding that defendant had every reason to know that the message was important, defendant willfully, wantonly, recklessly, and negligently failed to deliver said message as directed and as agreed upon, it not being delivered until the following day about 11 or 12 o'clock, and not then until plaintiff's friend called for it. That defendant had on previous occasions delivered messages to the home of the said Roland Williams without extra charges, but willfully, wantonly, recklessly, and negligently failed to deliver this message as directed and as agreed upon, and by defendant's willful, wanton, reckless, and negligent failure to deliver said message when plaintiff arrived at the town of Perry on the morning train there was not one there to meet him, and after waiting there for some time and no one having come for him, the hour having arrived when his marriage was to take place, he endeavored to get a conveyance, but after trying diligently he failed to get any conveyance whatever, and was forced to go afoot in the rain, it having been raining hard all the morning, and plaintiff was unable even to procure an umbrella. That plaintiff walked a mile or more before he succeeded in getting a horse and buggy, and was then compelled to take an open buggy, without an umbrella, and drive several miles exposed to the hard rain, not being able to reach the home of the young lady whom he was to marry until long after the hour set for the marriage. That when plaintiff arrived at the home of the young lady whom he was to marry he was wet through and through, was cold, greatly pained, and humiliated, and suffered great mental anguish on account of not being able to meet the lady at the appointed hour, and on account of his appearance, his clothes being wet through and through. That from the exposure to which plaintiff was subjected, being already in ill health, he was caused several weeks' serious illness, was confined to his bed, attended by a physician, and came very near losing his life, having not yet fully recovered and perhaps being injured for life, and having to pay a heavy doctor's bill." Damages were de manded for "mental anguish at not being able to meet the lady whom he was to mar

ry at the appointed hour, the serious illness which he has suffered, his impaired health, and the heavy doctor's bill which his illness has cost him." Plaintiff recovered judgment, and the defendant appeals. Of the defenses set up, the appeal concerns only the general denial and the allegations that plaintiff could have avoided mental anguish and the exposure resulting in sickness by hiring a conveyance at Perry's.

1. Before entering on the trial, defendant's counsel made a motion to strike from the complaint all allegations relating to mental anguish, on the ground that the message failed to show on its face that neglect in delivering would result in mental anguish, and the complaint contained no allegation of notice to the defendant of the mission of the plaintiff. The circuit judge deferred the decision of the motion until the plaintiff offered evidence of notice to the defendant's agent, and then by admitting the evidence over objection practically decided the motion. In this there was no reversible error. The allegation "that notwithstanding the defendant had every reason to know that the message was important" is objectionable for indefiniteness. But it was sufficient to apprise the defendant of intention of the plaintiff to bring home to defendant notice of the reasons why the message was important. The remedy was a motion to make the allegation definite and certain. Wingo v. Inman Mills, 76 S. C. 552, 57 S. E. 525.

2. The plaintiff offered evidence tending to establish every allegation of his complaint. It is true it was his duty to use all reasonable efforts to hire a conveyance and to use all other practicable methods to prevent or minimize the mental anguish or other suffering resulting to him from defendant's negligence. But this rule cannot avail the defendant, for the plaintiff testified that he did make considerable effort to hire a conveyance. Whether he used reasonable diligence in his efforts was a question for the jury.

3. It cannot be said, as a matter of law, the exposure and sickness were results which could not have been contemplated by the parties, which the defendant could not have reasonably anticipated from a failure to deliver the telegram. There was evidence that the defendant knew of plaintiff's sickness at Bamberg, and the high consideration which required him to use his utmost efforts to reach his destination by the hour appointed for his marriage. Whether reasonable prudence required the plaintiff under the circumstances to wait until he could obtain a conveyance which would have protected him from the weather, and whether the exposure and sickness was due to the dereliction of the defendant as a proximate cause, were questions for the jury. The case is quite different from Jones v. Telegraph Co., 75 S. C. 208, 55 S. E. 318; Carter v. So. Ry. Co., 75 S. C. 355, 55 S. Ê. 771; and Keys v. Telegraph

Co., 76 S. C. 301, 56 S. E. 962. In these cases the exposure and sickness were not made necessary by the negligence of the defendant, but arose from the choice of the plaintiffs to undergo hardships which the defendant's negligence did not make necessary. Here, on the contrary, the evidence tended to show the exposure became unavoidable on account of defendant's negligence. The case, therefore, falls within the principle of Toale v. Telegraph Co., 76 S. C. 257, 57 S. E. 117; Machen v. Telegraph Co., 72 S. C. 256, 51 S. E. 697; Pickens v. Railroad Co., 54 S. C. 498, 32 S. E. 567.

4. The circuit judge, at the request of plaintiff's counsel, did erroneously, and no doubt inadvertently, charge the jury that primitive damages might be recovered for mere negligence. But subsequently the mistake was corrected by instruction so explicit that the jury could not fail to understand that punitive damages could not be recovered for negligence, but only on proof of willfulness.

5. The defendant did not attempt to explain the conduct of the operator at Wagner in making no effort whatever to deliver the telegram for about 17 hours. It was therefore for the jury to say whether he wantonly or willfully withheld it. Young v. Telegraph Co., 65 S. C. 93, 43 S. E. 448; Willis v. Telegraph Co., 73 S. C. 385, 53 S. E. 639.

6. There are numerous exceptions setting forth propositions of law which it is alleged should have been charged. The circuit judge made a charge to the jury covering in general and comprehensive terms the law bearing on the cause. The defendant made no request for elaboration or a more definite statement of these general propositions, and hence he cannot be awarded a new trial on this ground.

The judgment of this court is that the judgment of the circuit court be affirmed.

KIRBY et al. v. WESTERN UNION TELEGRAPH CO. (Supreme Court of South Carolina. July 23, 1907.)

1. TELEGRAPHS - DELAY IN DELIVERY-SPECIAL DAMAGES.

A message: "Your mother is dead; come to-night"-would not lead the telegraph compa ny to infer that delay in delivery would cause the addressee to miss a comfortable conveyance sent for her.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 65.] 2. EVIDENCE-OPINION EVIDENCE.

A witness not an expert should not give an opinion of a person's physical condition. [Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2238.]

3. TELEGRAPHS - DELAY IN DELIVERY - NO

TICE.

Where the addressee of a telegram, because of failure to deliver it, was compelled to sit in a cold waiting room at night, she having no mon

« PoprzedniaDalej »