Baker v. Western Union Tel. Co.

January 8, 1910. The opinion of the Court was delivered by In this action the plaintiff recovered a judgment for $300 against the Western Union Telegraph Company under the allegation that he had been "injured in his good reputation and standing and credit as a merchant," by the delay in the delivery of a telegram. According to the evidence on behalf of the plaintiff, this was the case before the Court: The plaintiff Baker, a small merchant, had stores at Elloree and Georgetown. Having a note of $100 due in the Bank of Charleston on 11th September, 1906, he delivered to defendant's agent at Elloree between nine and ten o'clock on 10th September, 1906, this dispatch, addressed to Jacob Baker, his son and agent in Georgetown, "Pay note Bank of Charleston today." He specially requested prompt delivery, informing the agent that he had a note due in Charleston and that the message was important, and was told by the agent that it would be delivered in about fifty minutes. The message was not delivered until about four o'clock in the afternoon of the same day, after the banks in Georgetown had closed for the day. Jacob Baker had funds in the bank to the credit of the plaintiff, sufficient to pay the note referred to in the telegram, and would have so applied them if the telegram had been promptly delivered. According to one version given by Jacob Baker, he had applied the funds to the payment of another note at about 2:30 o'clock just before the close of banking hours, and, therefore, could not pay the note in Charleston after the receipt of the telegram. Jacob Baker also testified he had the funds to the credit of his father to pay the note to the Bank of Charleston when the telegram was received, but because it was after banking hours he could not make the remittance in time to prevent protest. The note in the Bank of Charleston was protested, and, according to the plaintiff's evidence, his credit, especially in that bank, was greatly injured.

The defendant offered evidence tending to show that the plaintiff was in bad credit with merchants and banks, and that it was not his habit to pay notes at maturity; and that Jacob Baker could have prevented the protest by having the Georgetown bank to telegraph payment to the Bank of Charleston on the 11th of September. Defendant's agent at Georgetown testified that he received the message at 1:56 o'clock in the afternoon of the 10th of September, and sent it out at 2:50 o'clock, the delay being due to the absence of the messenger boys from the office on other business. No other explanation of delay appears in the evidence.

The first exception relates to the subject of explanation of the delay, alleging error in the refusal of the Circuit Judge "to allow defendant's witness, P.E. Ryan, to testify as to the conditions of the telegraph wires of the defendant company between Charleston and Georgetown over which the message had to be sent, and to explain the alleged delay." The portion of the record relied on to sustain the exception is as follows: "Q. Where do you live? A. Charleston. Q. What was your occupation on September, 10, 1906? A. I was acting chief operator that day. Q. For who? A. For the Western Union Telegraph Company. Q. Mr. Ryan, on that day, September 10, 1906, will you state what was the trouble, if there was any trouble, with the wires from Charleston to Georgetown? Objected to. Objection sustained. Exception noted."

It was certainly competent for the defendant to explain the delay, by showing that any trouble with its wires between Elloree and Georgetown was not due to its negligence. But there is nothing whatever in the record to show that it was necessary for the message to go by way of Charleston, and until the defendant had offered some evidence that the message would pass over the wire connecting Georgetown and Charleston, there could be no complaint of the exclusion of this testimony as irrelevant. As there was no evidence of any derangement of the wires between Elloree and Georgetown there was no basis for the request to charge on that subject.

The objection to testimony of Baker in explanation of the protests of the other notes cannot be sustained; for it was certainly competent for him to testify to circumstances, indicating that his credit was not injured by the other protests. No objection to the statement of the plaintiff that he had a wife and children appears in the record. The ground of objection to his testimony that since the bank had refused him credit he had lost a lot of business and could not buy bargains, because he could get no credit, was not indicated to the Court when the objection was made. But aside from that, it was nothing more that a statement that he could not do that which every merchant strives to do.

The words of the telegram, and the evidence of the plaintiff that he gave special notice of the importance of prompt delivery were sufficient to put the defendant on notice that the probable consequences of failure to deliver would be dishonor of the plaintiff's note and injury to his credit.

The evidence that by reason of the failure to get the telegram promptly, plaintiff's agent, Jacob Baker, used the fund in bank to pay another debt, just before the bank closed, and so was unable to prevent the protest of the note in the Bank of Charleston, was not fatally variant from the allegation of the complaint that the telegram was not delivered until "after banking hours and too late for the plaintiff's son and agent to have paid said notes."

The cause of action stated in the complaint was the defendant's breach of duty in failing to deliver the telegram promptly, and injury to the plaintiff, which arose from the delay in that his note was protested and his credit impaired. The circumstances which made it impossible to meet the note after the telegrams was received were mere details. It was not error, therefore, for the Court to charge the jury that: "If he had plenty of time and the means, and was not without means because of the failure of duty on the part of the defendant company, but had used those means for other purposes which he would not have used but for the negligence of the defendant company, and then injury resulted to him by reason of the protesting of the note, which would not have been protested had the telegram been delivered within a reasonable time, then the defendant would be responsible." It is true that the statements of Jacob Baker on this subject are utterly irreconcilable, but that was a matter for the jury.

There was no evidence of wantonness and wilfulness, and the Circuit Judge should have instructed the jury as requested by defendant that they could not find punitive damages. The only evidence relied on to show wilfulness or wantonness was the delay in the transmission of the telegrams. The telegram was sent, according to the complaint, at 10:30 A.M., and according to the evidence at about 9:30 A.M., and received at about 4 on the same day. There is no evidence that the line is direct between Elloree and Georgetown, on the contrary the statement of the defendant's agent to the plaintiff that it would take fifty minutes to get it through indicates plainly that it was not direct. The delay from 1:56 P.M., when it reached the Georgetown office, to the time of delivery was explained by the Georgetown agent to be due to the absence on office duty of all the messenger boys. The question is, whether an unexplained delay of four or five hours between Elloree and Georgetown is evidence of wantonness or wilfulness. The rule in this State is that delay in the transmission and delivery of a telegram is evidence of negligence on the part of the telegraph company. Poulnot v. Tel. Co., 69 S.C. 545,48 S.E., 622; Hellams v. Tel. Co., 70 S.C. 83,49 S.E., 12; Ariail v. Tel. Co., 70 S.C. 418; 50 S.E., 6; Eaker v. Tel. Co., 75 S.C. 97, 55 S.E., 129; Kirby v. Tel. Co., 77 S.C. 404;58 S.E., 10; and that long and unexplained delay is evidence of wilfulness or wantonness. This latter doctrine has its origin in Young v. Tel. Co., 65 S.C. 99,43 S.E., 448. In that case Justice Gary, speaking for the Court, laid down the rule that evidence of the telegram remaining in the possession of the telegraph company undelivered for fourteen hours, together with affirmative evidence that noeffort had been made to deliver it, was sufficient to go to the jury on the issue of wilfulness. This case went no further than to hold that where the plaintiff offered evidence not only of the long delay, but also of lack of effort to deliver, he had made an issue of wilfulness for the jury. The cases which followed have extended the rule in favor of the plaintiff in such cases by holding evidence of long delay in delivering the message without an affirmative showing bythe defendant of effort to deliver, to be sufficient to carry the issue of wilfulness to the jury. Machen v. Tel. Co., 72 S.C. 256,51 S.E., 697; Willis v. Tel. Co., 73 S.C. 385,53 S.E., 639; Bolton v. Tel. Co., 76 S.C. 529,57 S.E., 543; Dempsey v. Tel. Co., 77 S.E., 404, 58 S.E., 9; Balderston v. Tel. Co., 79 S.C. 160, 60 S.E., 435; Fail v. Tel. Co.,80 S.C. 207, 60 S.E., 697. In these cases the range was from a delay of seventeen hours to an entire failure to deliver, and in some of them the delay was accompanied by other circumstances tending to show wilfulness. It is not possible to lay down any hard and fast rule as to the duration of the time of delay necessary to carry the issue of wilfulness to the jury, because of the varying circumstances of each case. But we reject the proposition that delay of four or five hours, without proof of a direct line between the initial and terminal offices or other supporting circumstances, is evidence of wilful disregard of duty. The law does not assume wilful violation of duty. On the contrary, the burden is on him who alleges it to prove it. When it is remembered that inexplicable miscarriages in business will sometimes occur, notwithstanding the utmost human care, vigilance and ingenuity, the Courts ought to be very cautious in allowing the inference not only of lack of care but also of wilful violation of duty to be drawn from a particular instance of lack of promptness in transmitting and delivering a telegram or in the performance of any other duty.

Counsel for appellant earnestly contends that there were contradictions in evidence on the part of the plaintiff, and such an entire failure of proof of damage to plaintiff that the Circuit Judge should have granted the motion for a new trial. The exception on this point cannot be considered, because there was no motion for nonsuit and no request to direct a verdict as to the alleged cause of action for actual damages.

The judgment of this Court is, that the judgment of the Circuit Court be reversed and the cause remanded to that Court for a new trial on the cause of action for the alleged negligence of the defendant.