8119

#### MACKORELL BROS. v. WESTERN UNION TEL. CO.

1. Telegraph Companies — Strikes—Telephone—Issues.—It should be left to the jury to say whether due care and diligence required a' telegraph company, who could not transmit a message on account of a strike on its lines, to transmit it by telephone.

*Hellams*v. *Tel. Oo.,*70 S. C., 83, *explained.*

2. Ibid. — Ibid.—Where a telegraph company cannot deliver a message on account of a strike of its employees, it should so inform the sender. The mere fact that its employees are on a strike does not excuse delay in the transmission of a message, but the burden is on it to show the strike was not brought about by its own fault or negligence and that it exercised due care and diligence to supply the place of the striking employees.

Mr. Justice Woods *thinks this point should not have been considered in this case.*

3. Rehearing *refused.*

Before DuVorE, York, April term, 1910.

Reversed.

Action by Mackorell Brothers against Western Union Telegraph Company. Plaintiff appeals.

*Messrs. Geo. W. S. Hart*and *John R. Hart,*for appellants.

*Mr. Jno. R. Hart*cites: *Defendant should have made a reasonable effort to transmit by other lines:*82 S. C. 573; *2*Joyce on Elec. E., sec. 741. *Defendant should have notified sender that message would be probably delayed:*55 Fed. 738; *12*Ind. App. 17; 45 Mo. App. 433; 117 N. C. *499352; 74 S. C. 300; 16 S. C. 529; 77 S. C. 174. *These carriers should make reasonable effort to supply places of strikers:*Jones on T. & T. Cos., secs. 361, 430; 159 Fed. 643; 55 Fed. 738; 36 Tex. Civ. App. 98; 2 Joyce., sec. 735; 29 Tex. Civ. App. 526.

*Messrs Geo. H. Fearons, John Gary Evans*and *Thos. F. McDow,*contra.

*Mr. Evans*cites: *Telegraph Co. is not in duty bound to deliver a telegram Oder a telephone:*70 S. C. 83; 82 S. C. 513. *A mere possibility of making a contract is too uncertain to base a judgment for damages upon:*65 S. C. 490; 76 S. C. 345; 55 S. E. 777; 33 Wis. 567; 1 Am. Elec. Cas. 62-834; 29 So. 787; 1 Am. Elec. Cas. 750; 54 S. W. 825;'l3 Ky. 256; 102 N. W. 850; 8 So. 746; 40 S. C. 524; Jones on T. & T. 524; 51 S. E. 294; 56 S. E. 467; 52 S. E. 154; 47 So. 412.

March 2, 1912.

The opinion in this case was filed on January 24, 1912, but remittitur held up on petition for rehearing until

The opinion of the Court was delivered by

Mr. Justice Hydrick.

On 20th August, 1907, plaintiffs, who aire wholesale grocers, filed with defendant’® agent at Yorkville, S. C., a night message, addressed) 'to Dunlap Milling Company, at Clarksville, Term., as follows: “Book two thousand 'barrels same price as last contract.” The addressee was engaged in the manufacture and sale of flour, and1 the telegram was an order for two thousand barrels at $4.75 each, that being the price at which the company had' last sold plaintiffs flour. According to the testimony, the custom of the trade is that if an order, like the one sent by plaintiffs, is accepted, no notice of acceptance is given, and where no reply to such -an1 offer is received, 'the party making it regards it as accepted and acts accordingly. Receiving no reply, plaintiffs regarded their offer as accepted and sold *500flour to their customers on a basis of $4.75 per barrel, for which they had -to pay $4.95 in 'the market to fill their contracts. If their telegram had been promptly delivered on the morning of the 21st, as it should have been, in due course, plaintiff's’ order would have been accepted, but if it had been declined, they would have been notified, according to the custom of the trade, and they could and would have bought the flour elsewhere at the price which they offered the Dunlap Milling Company.

The message was transmitted to Nashville, Tenn., by telegraph, but, on account of a strike among defendant’s employees, the defendant’s 'office at Clarksville was closed1, and the agent at Nashville forwarded it to- the milling company by mail. On receipt of it, on August 22, the milling company declined to accept it, and so notified plaintiffs. There was a telephone line between Nashville and Clarks-ville and the addressee had a telephone in its office connected with that line. The message could have been telephoned from Nashville directly to the addressee. Defendant sent no service message notifying plaintiffs that its Clarksville office was closed-, or of its failure to promptly transmit and deliver the message. When the message was filed, plaintiffs knew that there was a strike among defendant’s employees and that some of its offices were closed on that account, but did not know the Clarksville office-'was closed. The testimony w-as conflicting as to whether plaintiffs were informed when the message was filed-, that -it would be received only “subject to indefinite delay” on account of the strike.

This action was brought to recover damages alleged to have resulted to plaintiffs on account of the failure to deliver the message promptly. Under the instructions given them, the jury found' far the defendant, in whose favor judgment was duly -entered.

The Circuit Judge erred in charging the jury that it was not the defendant's -duty to telephone the message from Nashville' to 'the addressee. ' This instruction.' was based-*501upon a misapprehension by his Honor of the decision 1 of this Court in the case of *Hellams*v. *Tel. Co.,*70 S- C. 83. In that case, the telegram was sent from Greenville, S. C., to Hellams, who was on Sullivan’s Island, near Charleston, S. C. The island was connected with the city of Charleston by steamboats and also by telephone line, but Hellams had no telephone in his house. On the back of the blank upon which the message was written were the following words: “And this company is hereby made the agent of the sender without liability to forward any message over the line's of any other company when necessary to- reach its destination.” Construing this language, the Circuit Judge instructed the jury that if defendant could have forwarded the message by telephone and failed to do -so, they should find for plaintiff, if they also found' 'that due care and diligence ini the transmission of the message required the forwarding thereof by telephone. On appeal, this Court held that this instruction was -erroneous, holding that the words in the contract above quoted, “the lines of any other company,” meant-the lines of any other telegraph company; and not the lines' of any telephone company. The Court also held that, as the proof showed 'that Hellamis had no- telephone in hisi house, to impose -on defendant the duty of forwarding the message by telephone would- -have required the intervention of some third person through whom it would have had to b-e -conveyed to Hdlams, which would have impaired- the confidential relations assumed in tbé handling of the telegram. In this- case, the message could have been telephoned directly to the addressee, without in the slightest degree impairing the confidential relations assumed in undertaking to' deliver it. The Court should have left i-t to the jury to say whether, under the circumstances', due care and diligence in the transmission and delivery of 'the message required defendant to forward it from Nashville to Clarksville by telephone. Ini *Sullivan*v. *Tel. Co.,*82 S. C. 569, this Court said: “It is the duty, *502however, of 'these companies, where they have been thus interferred! .with (that is, by a strike) to make a reasonable effort to transmit the telegram by other lines' or other means, and oni failure to do so, they will be held liable for all losses suffered.”

2 Moreover, it was defendant’s duty to notify plaintiffs, as soon as it discovered that it could not deliver the message promptly oni account of the office at Clarksville being’ closed, SO' that they might take such further steps in the premises as they might have deemed necessary for the protection of their interests'. Tine mere fact that the Clarksville office was closed', because the' operative there had gone on a strike, does not excuse the delay. Before it can avail itself of that defense, the 'burden is upon the defendant to prove that the strike was not brought about 'by its own fault or negligence, and that it exercised due care and diligence to supply the place of the striking employee. Jones on T. & T. Cos., secs. 361, 365.

Defendant seeks to sustain the judgment on the ground that 'the Court should have directed the verdict in its favor. As there was some evidence in support of the faots herein-before stated, there was no error in refusing to direct the verdict. *Lathan*v. *Tel. Co.,*75 S. C. 129.

Judgment reversed.

Messrs. Chief Justice Gary and Justice Woods *are the only Justices participating in this opinion. The Chief Justice concurs.*

Mr. Justice Woods,

*concurring in the result.*I concur in reversing the judgment and' in the reasoning of the opinion except in one particular. When delay in the carriage of goods or in the transmission and delivery of telegraph messages is duie to a strike of the carrier’s employees, the question whether the burden is on the carrier to prove that the strike was not brought about by its own negligence is a difficult and important one which seems not to be settled by *503a 'controlling current of authority. 'The point is not made in the exceptions anidi its decision is not necessary to a disposition of the appeal. I think therefore the Court should not commit itself on the question until a case arises! in which; it is directly involved and the 'Court has 'had the benefit of full argument.

3 Petition for rehearing was refused by formal order filed March 2, 1912.