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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, $$

2. CRIMINAL LAw—DISTURB ING PUBLIC WORSHIP-JURISDICTION.—EV IDENCE. 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 §" 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 congre. gation. There was evidence of a congrega. tion engaged in worship being disturbed and broken up by a riot, about 40 feet from th: 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.


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

1. TFLEGRAPHs—DELAY IN DELIVERY-PLEADin G. 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, §§ 64, 74.] 4. TEIAL–ERROR IN INSTRUCTION.—CURE BY 0THER 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.

W00DS, 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 Milway 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 dio 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: “Numher I Rx. Sent by G. Received by W. Wheck 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 insportant, 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 suffer. ed 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 phy. sician, 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. 20:8, 55 S. E. 318; Carter v. So. Ry. Co., 75 S. C. 355, 55 S. f. 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 W. Telegraph Co., 65 S. C. 93, 43 S. E. 448; Willis v. Telegraph Co., 73 S. C. 385, 53 S. 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.



(Supreme Court of South Carolina. July 23, 1907.) 1. TELEGRAPHs — DELAY IN DELIVERY-SPECIAL DAMAGES. A message: “Your mother is dead; ceme 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. Evi DENCE–OPINION Evi DENCE. 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, $ 223S.] 3. TELEGRAPHs – DELAY IN DELIvery - NoTI

KIRBY et al. v.

CE. 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 mo" ty to pay, hotel bill, she cannot, resover, damis therefor, unless the carrier had notice. 4. SAME-DELIVERY. . "Deliver,” as applied to a telegram, means "transmit and deliver." 5. Evidence–OPINION EVIDENCE. It is within the discretion of the trial judge to allow a telegraph messenger to testify what would be a reasonably quick delivery of a telegram. [Ed. Note—For cases in point, see Cent. Dig. rol. 20, Evidence, $ 2196.] 6. TELEGRAPHS – DELAY IN DELIVERY-EVIDENCE. An addressee of a telegram, in an action for damages, makes out a case by proving long delay in delivery and damages resulting therefrom. [Ed. Note—For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 63.]

7. ThiaL–ARGUMENTS OF COUNSEL. Statement of attorney for plaintiff, in action against telegraph company for failure to deliver message, that if the telegram had been sent to any prominent man in the city “the company would fall over itself" to deliver it, was prejudicial and ground for reversal.

(Ed. Note—For cases in point, see Cent. Dig. vol. 46, Trial, $ 303.]

Appeal from Common Pleas Circuit Court of Union County; Memminger, Judge.

Action by Mamie G. Kirby and Wm. F. Kirby against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Reversed.

GeO. H. Fearons, Evans & Finley, and J. Ashby Sawyer, for appellant. S. Means Beatty and De Pass & De Pass, for respondents.

POPE, C. J. Plaintiffs, Mamie G. Kirby and her husband, William F. Kirby, brought this action against the defendant telegraph Company, to recover actual damages alleged to have resulted from the negligent delay in delivering the following telegram sent to the plaintiff Mamie G. Kirby by her father, J. E. Kinsey: “Your mother is dead; come to-night." The message, according to the testimony, was received by the agent at BranchWille, the home of J. E. Kinsey, between 7 and 80'clock on the morning of the 3d of March, 1904, and was delivered to the plaintiff at Union about 2 o'clock p.m. of the same day. Plaintiff alleges that by reason of the delay it was impossible for her to reach Branchville that day, the noon train, the only day train South, having already gone; that she was compelled to leave Union at 9 o'clock that night, and arrived at Columbia at 11 o'clock, where She was forced to remain in the depot all night. suffering much from the severe cold; that upon reaching Branchville, and learning that it was about time for the funeral, being unable to obtain other conveyance, she was forced to take passage with a mail carrier who proved very obnoxious to her; that she arrived too late for the Interment; that she suffered much mental anguish by reason thereof; and as a result of her stay in the depot and her ride through the country in the unComfortable vehicle of the carrier she took told and became sick, and was put to much

inconvenience and expense. Defendant denied that it was negligent, and sought to show that, even if it was, its negligence was not the proximate cause of plaintiff's damage. The case was heard at the November, 1906, term of the court for Union county, and resulted in a verdict of $500 for the plaintiff. Judge Memminger, the presiding judge, having overruled a motion for a new trial, the defendant appeals. 1. The first exception alleges error: (1) In admitting the testimony of the witness J. E. Kinsey that he sent a comfortable buggy by one of his sons-in-law to meet plaintiff at Branchville about 6 o'clock in the afternoon, expecting her to be there about that time in response to the telegram. (2) In allowing said witness to state the physical condition of the plaintiff at the time she reached his house from the cemetery. We think this exception should be sustained. There are a number of cases recently filed by this court holding that the plaintiff can recover only for damages such as the defendant had notice of, or as a reasonable person should have known would result from delay in delivery. Doster v. Telegral h Co., 57 S. E. 6711 ; Du Bose v. Telegraph Co., 73 S. C. 220, 53 S. E. 175; Arial v. Telegraph Co., 70 S. C. 418, 50 S. E. 6. The telegram here under consideration on its face contained nothing that could put defendant on notice that, if it was not delivered promptly, plaintiff would be deprived of the convenience of a comfortable buggy in which to make the trip to her father's. Such a result was not in the confermplation of the parties, and therefore defendant cannot be held responsible. Evidence tending to show damage resulting therefrom was, hence, incompetent. 2. As to the second ground of the exception, it was not shown that the witness was in a position to testify as to the physical condition of the plaintiff. It does not appear that he was a physician or an expert in such matters. His opinion was, therefore, not admissible. He could have stated the facts 11om which the jury might have inferred plaintiff's condition, 17 Cyc. 25. 3. The second exception alleges error in allowing plaintiff to testify that she stayed in the waiting room because she did not have money to pay hotel expenses and was a stranger in Columbia. Damages resulting from these causes could not be other than special damages, and for them it is well settled the defendant cannot be held responsible, unless notice is given. Jones v. Tel. Co., 75 S. C. 20S, 55 S. E. 318. 4. The circuit judge instructed the jury that by delivery here was meant transmission and delivery. The defendant contends that delivery does not include transmission. We think the circuit judge was correct. To deliver means to hand over. To transmit is to communicate; to send from one person to another. The terms imply to some extent the same idea ; the distinction being that the latter implies separation of the actors. There is nothing to lead to the conclusion that while a message is passing over the wire it is being transmitted, and while in the possession of the messenger boy, being carried to its destination, it is being delivered. We think the whole constitutes one transaction, the passage of the message between the Sender and the person to whom it is sent. 5. The fourth exception alleges error on the part of the circuit court in refusing to permit the witness J. R. Mathis, a messenger boy, to testify as to what would be a reasonably quick delivery in this case. The admission of such testimony is largely in the discretion of the trial judge, and will not be ground for reversal, except where it is clearly harmful to the appellant. 17 Cyc. 28; Watts v. Railway, 60 S. C. 70, 38 S. E. 240; Tinsley v. Telegraph Co., 72 S. C. 352, 51 S. E. 913. That the exclusion here could not have been harmful is very evident. The witness was allowed to state the facts, and from these the jury could form their own opinion. 6. The circuit judge charged the jury that unreasonable delay created the presumption of negligence; that the defendant was called upon to relieve itself of the presumption, and, if it failed, then they must inquire whether Mrs. Kirby had shown that she suffered by reason of that negligence. Defendant contends that this relieved the plaintiff from proving her case by the preponderance of the evidence. It is well settled in this state that long, unexplained delay gives rise to the presumption of negligence. Poulnot v. Telegraph Co., 69 S. C. 545, 48 S. E. 622; Hellams v. Telegraph Co., 70 S. C. 83, 49 S. E. 12; Arial v. Telegraph Co., 70 S. C. 423, 50 S. E. 6. Therefore, if such delay is shown, and it is not explained, clearly the preponderance of the evidence is that the company was negligent. If the plaintiff then go further and show that she suffered by reason of that negligence, then certainly her case is made out. This contention cannot be sustained. 7. The eighth exception alleges error on the part of the circuit court in permitting the plaintiff's counsel to use the following language in his argument to the jury: “If a telegram were to be sent to Mr. Duncan, Mr. Nicholson, or Mr. Farr, that the telegram would go to them with arms open, and the company would fall over itself to deliver the message to any prominent man in Union.” And also: “That the newspapers of the state were constantly publishing, from New York to St. Augustine, articles about South Carolina juries not doing their duty when trying criminal cases, and that Mr. Sease, the solicitor, had remarked about it last week.” In the case of State v. Robertson, 26 S. C. 118, 1 S. E. 443, it is said: “That it is most certainly proper, and especially in criminal cases, that counsel, in addressing a jury, should keep themselves strictly within the record.” In 2 Ency, of I’. & P. 752, it is said: “Very

1 76 S. C. 56,

many abuses in argument may be sufficiently counteracted by instructions of the court to the jury, and a large discretion as to the refusing of new trials because of such violations of propriety is accorded to the trial courts. The appellate court will frequently condemn the language or conduct of counsel, and at the same time affirm a judgment denying a new trial, on the ground that under all of the circumstances the rights of the defeated party were not materially prejudiced, or that the action of the trial court in the premises was effectual to restore to the proceedings the fairness of which they had been divested.” Let us, then, inquire whether the rights of the defendant here might have been materially prejudiced. It will be borne in mind that there was not a cause for punitive damages. Only actual damages were sought. Another fact which must not be overlooked is that there seems to be a tendency at the present day to hold corporations to strict accountability for their acts. Any language which tends to fan this natural feeling into greater fury, “flights of oratory” though it be, certainly has its weight and should be avoided. Courts are for the purpose of dispensing justice, and, were this kind of advantage allowed, in many cases that purpose might be defeated. Where the record does not sustain the remarks made, if it is evident that harm does result from them, it seems that this court should exercise its power and grant a new trial. We think the language here used was highly prejudicial to the defendant, and therefore sustain the exception. The last exception raises the point that a new trial should have been granted because there was no evidence to show that the delay in the delivery of the telegram caused Mrs. Kirby any damage whatever. It being already decided that a new trial should be granted, we do not consider it necessary to pass upon this question. It is the judgment of this court that the judgment of the circuit court be reversed.

GARY, A. J., concurs in the result. JONES, J., concurs in the result, and thinks the eighth exception should be overruled, citing State v. Williamson, 65 S. C. 249, 43 S. E. 671.

LY ON v. CHARLESTON & W. C. RY. (Supreme Court of South Carolina. July 10, 1907.)

1. MASTER AND SERVANT—INJURY TO SERVANT —Ev IDENCE. In an action for injuries to a flagman while attempting to uncouple cars, evidence held insufficient to show negligence on the part of the Inaster. 2. SAME—FELLow SERVANTs. A flagman who had been instructed to obey the orders of conductors and engineers while the conductors are in charge of trains, while obey

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