73 S.E. 359 | S.C. | 1912
Lead Opinion
March 2, 1912. The opinion of the Court was delivered by On 20th August, 1907, plaintiffs, who are wholesale grocers, filed with defendant's agent at Yorkville, S.C. a night message, addressed to Dunlap Milling Company, at Clarksville, Tenn., as follows: "Book two thousand barrels same price as last contract." The addressee was engaged in the manufacture and sale of flour, and 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 an 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 *500 flour 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, plaintiffs' 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 closed, 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 Clarksville 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 was 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 for 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 *501
upon a misapprehension by his Honor of the decision of this Court in the case of Hellams v. Tel.Co.,
Moreover, it was defendant's duty to notify plaintiffs, as soon as it discovered that it could not deliver the message promptly on 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. The 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 facts hereinbefore stated, there was no error in refusing to direct the verdict. Lathan v. Tel. Co.,
Judgment reversed.
MESSRS. CHIEF JUSTICE GARY AND JUSTICE WOODS arethe only Justices participating in this opinion. The ChiefJustice concurs. Petition for rehearing was refused by formal order filed March 2, 1912.
Concurrence Opinion
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 due 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 *503 a controlling current of authority. The point is not made in the exceptions and 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.