Opinion
8319
September 18, 1912.
Before COPES, J., Hampton, February term, 1912. Reversed.
Action by Mamie Wall against Western Union Telegraph Co. Plaintiff appeals.
Messrs. W.S. Smith and W.H. Townsend, for appellant, cite: Unreasonable delay raises presumption of negligence: 89 S.C. 190. Nonsuit should not be granted where there is any evidence tending to show damages by negligence or wilfulness: 72 S.C. 256; 73 S.C. 430; 89 S.C. 567.
Messrs. Geo. H. Fearons and Warren Warren, contra. Messrs. Warren Warren cite: Uncontradicted evidence of effort to deliver relieves of punitive damages: 77 S.C. 148, 522; 78 S.C. 109. Rules and regulations: 71 S.C. 303. Sender must pay for delivery beyond free limits: 77 S.C. 174; 74 S.C. 300.
September 18, 1912. The opinion of the Court was delivered by
The plaintiff, who lived in the country two miles from Ridgeland, had instituted, or was about to institute, an action for divorce in Jessup, Ga. On October 15, 1909, her attorney, J.R. Thomas, delivered to the defendant telegraph company for transmission the following message: "Jessup, Georgia, tenth-fifteenth, nineteen hundred and nine. Mrs. Mamie Wall, Ridgeland, S.C. Papers will be ready tomorrow. Come No. 85 train. James R. Thomas." The telegram was not delivered until the plaintiff called for it on October 20, in consequence of a letter received on the subject. The complaint alleges that the delay in delivery was due to the negligence, wilfulness, and wantonness of the defendant, and that thereby the plaintiff "was prevented from keeping an important business engagement in Jessup, was inconvenienced, annoyed, subjected to expense, a trip from Ridgeland, South Carolina, to Jessup, Georgia, which was fruitless for the reason that the said message had not been delivered when called for at defendant's office and otherwise damaged to her injury in the sum of nineteen hundred and ninety-nine dollars." The answer contains a general denial, and the special defenses that the plaintiff lived beyond the free delivery limits at Ridgeland, and the charge for delivery beyond the limits was not paid; and that the plaintiff was not known by the name of Mamie Wall, but by the name of Sallie Nettles or Sally Wall.
At the conclusion of the entire evidence the Circuit Judge granted a nonsuit.
There was testimony on the part of the plaintiff tending to show that her real name by which she was generally known was Mamie Wall, and that she had signed receipts for express packages to the defendant's agent by that name; that on October 15th, she was in Ridgeland and asked for a telegram; that when she called again and received the telegram from the agent he found it in his waste basket; and that the divorce proceedings were retarded by the delay in the delivery of the message. On the part of the defendant, there was evidence that the plaintiff was not known by the name of Mamie Wall, but as Sallie Nettles or Sallie Wall, and that there was another woman living some distance from Ridgeland whose name was Mamie Wall; that the defendant's agent did not know the plaintiff as Mamie Wall and that he made inquiries for Mamie Wall of persons most likely to know her and was informed that no such person was living in Ridgeland; that he sent a service message requesting payment or guaranty of the charge for delivery of the message to the other woman known as Mamie Wall living beyond the free delivery limits, and that the sender of the message refused to pay or guarantee the charge.
This general statement is, we think, sufficient to show that there was an issue made by the evidence on the decision of which by the jury the verdict would depend.
Reversed.