Robertson v. Telegraph Co.

February 29, 1912. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, through the negligence of the defendant, in failing to deliver a telegram within a reasonable time.

The plaintiff and her husband lived at Ninety-Six, S.C. and worked in the factory. The husband went to Edgefield, S.C. on a bicycle, to visit his sister, Mrs. Kate Waits, and becoming suddenly ill, sent the following telegram to his wife on the 17th of July, 1910: "I am sick; we will be home tomorrow on train."

He failed to arrive at home, on the 18th of July, and his wife, on that day, sent to him the following message: "When will you be home?" And in reply thereto, Mrs. Kate Waits, (in whose care the telegram was addressed), on the 18th of July, 1910, at six o'clock p. m., delivered to the defendant, for transmission, the following telegram: "Jerry is on way on bicycle; left at ten." The said telegram was not delivered to the plaintiff until the next day at ten o'clock a. m., July 19, 1910, and as the result of the failure to deliver the last mentioned telegram, the plaintiff alleges, that she suffered mental anguish.

The jury rendered a verdict in favor of the plaintiff for $500.00, and the defendant appealed upon exceptions, which will be reported.

First Exception. The ground of objection to the admissibility of the testimony, is, that it was irrelevant. Even conceding that there was error, the appellant has failed to satisfy this Court that it was prejudicial. Second Exception. The appellant has failed to show that if there was error, it was prejudicial to its rights.

Third Exception. His Honor, the presiding Judge, could not have directed a verdict, without invading the province of the jury.

Fourth Exception. What was said in disposing of the third exception, is conclusive of this question.

Fifth Exception. When the charge is considered in its entirety, it will be seen, that this exception cannot be sustained.

Sixth Exception. The presiding Judge could not have charged the request, as presented, without invading the province of the jury.

Seventh Exception. What was said in considering the sixth exception, is conclusive of this question.

Eighth Exception. There was testimony tending to sustain, all the material allegations of the complaint, and there does not appear to have been an abuse of discretion, on the part of his Honor, the presiding Judge, in refusing the motion for a new trial.

The second appeal is from the refusal of "a motion before his Honor, R.W. Memminger, presiding Judge, at the October term of the Court of Edgefield county, to set aside a verdict for the plaintiff rendered in this case, upon after-discovered evidence, showing that the foreman of the jury that found the verdict, was the uncle of the plaintiff."

The defendant introduced certain affidavits, in support of the motion, but it will only be necessary to reproduce the following:

Affidavit of Amos Eubanks, in which he says:

"That he sat as a juror, and was foreman of the same, in the case of Mrs. Jerry Robertson against the Western Union Telegraph Company; that he is the uncle of the father of Mrs. Jerry Robertson. That at the time the Circuit Judge asked, if any of the jurors were related to the plaintiff, deponent did not answer, because he did not know who Mrs. Robertson was at that time, and the same had no influence on me."

Affidavit of Mr. John Gary Evans, which was as follows:

"That he is attorney for the Western Union Telegraph Company, defendant in this action, and that his brother, N.G. Evans, was associate counsel.

"That deponent had no knowledge of any relationship, existing between the plaintiff, Mrs. Robertson, and the foreman of the jury, Mr. A. Eubanks; that deponent requested the Court to ask the jurors, before they were sworn, whether they were related, by blood or marriage, to the plaintiff or her husband, in this action. That such question was asked, and no response whatever was made by any juror, and that the case went to trial and A. Eubanks appears upon the record, as foreman of the jury. That several months after the trial of the case, and verdict rendered, deponent was informed that the foreman of the jury, was the uncle of the plaintiff, Sallie Robertson, whereupon deponent instituted an inquiry, and ascertained through an affidavit of A. Eubanks himself, which affidavit is herewith submitted to the Court, that it was true that he was the great uncle of the plaintiff. That the Western Union Telegraph Company had no knowledge, so far as this deponent is able to ascertain, of any relationship existing between Mrs. Robertson and the foreman of the jury, prior to or at the trial of said cause."

The plaintiff introduced the following affidavit in reply:

Affidavit of Jerry Robertson, who says:

"That he is the husband of Mrs. Sallie Robertson, the plaintiff in the above entitled action, and was present at the trial of said case. That deponent never lived near Mr. Amos Eubanks, but married at Edgefield and moved from there to Ninety-Six, S.C. and didn't know of any relationship whatsoever between his wife and Mr. Eubanks, when the jury was selected, and never heard of any relationship between them, until right recently."

Affidavit of Mr. J.W. Thurmond, who says:

"That he is a member of the firm of Thurmond Nicholson, who represented the plaintiff in the above entitled action; and when said case was tried, he had no knowledge or information of any relationship between Mr. Eubanks, the foreman of the jury in said case, and the plaintiff in the action, and this deponent never heard of any such relationship, until since the verdict in said case was rendered. Deponent walked into the office of N.G. Evans, Esq., just as Mr. A. Eubanks had signed the affidavit offered by the defendant, on this motion, and Mr. Eubanks remarked to deponent that he thought the affidavit ought to contain the statement, that no relationship between him and the plaintiff, had any influence on him, in agreeing to the verdict in that case, and then deponent suggested to Mr. Eubanks that this statement should be incorporated in the affidavit, and so it substantially was. That deponent has known Mr. A. Eubanks for a number of years, and knows him to be a man of integrity and honor, and is satisfied that his statement is true to the effect, that he did not know of the relationship of the plaintiff to him, as mentioned in his affidavit, and besides, deponent is satisfied, that if it had been otherwise, the said juror would not have been influenced thereby, in his verdict in said case."

Affidavit of Mr. B.E. Nicholson, which is to the same effect as that of Mr. J.W. Thurmond.

Section 2944 of the Code of Laws is as follows: "The Court shall, on motion of either party in suit, examine, on oath, any person who is called as a juror therein, to know whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein, and the party objecting to the juror, may introduce any other competent evidence, in support of the objection. If it appears to the Court, that the juror is not indifferent in the cause, he shall be placed aside as to the trial of that cause, and another shall be called."

The rule is thus stated in the case of State v. Brock,61 S.C. 141, 39 S.E. 359: "While the Circuit Judge committed error, in stating that jurors related by blood or connected by marriage, within the sixth degree, to either of the parties, were disqualified from sitting as such, and that both consanguinity and affinity, within the sixth degree, were grounds for legal exceptions, under the statutes, still he stated a very salutary rule. Certain the Legislature has interdicted Judges, from sitting in cases of such relationship, and it is a good guide to the exercise of a sound discretion by a Circuit Judge, to observe the same degree of relationship."

In the case of State v. Perry, 73 S.C. 199, 53 S.E. 169, the principle was announced, that the relationship of a jury commissioner to a party, which would invalidate the finding of a grand jury, must be such as would reasonably lead to the presumption, that the commissioner would be thereby affected in such manner, as to impair the proper discharge of his duties, and that fact must be determined by the trial Judge, in the exercise of a sound discretion.

If the practice prevailed, of allowing a person related to a party litigant, either by consanguinity or affinity, as a great uncle, to sit as a juror, especially as foreman, the administration of justice, would be brought into disrepute.

The following language of the Court, in the case ofState v. McQuaige, 5 S.C. 429, is applicable to this case: "The obligation resting on one engaged in drawing a jury involves a duty of such a high, important and delicate character, that its exercise must be free even from a suspicion of partiality. It is true that no charge of wrong is imputed to the commissioner, Courts must be governed by general principles. It is better for the community, that a definite and established rule should prevail, not affected by any condition or provision, to be applied by any inquiry as to intention or motive, the ascertainment of which is almost impossible, save through the oath of the party, whose act may be the subject of challenge and examination."

The uncontradicted testimony shows, that the defendant's attorney requested his Honor, the presiding Judge, to ask the jurors, before they were sworn, whether any of them were related, by blood or marriage, to the plaintiff or her husband, in this action. That the question was asked, and no response whatever was made by any juror.

Although the motion for a new trial, on the ground that the plaintiff and the foreman were related, within the sixth degree, was addressed to the discretion of his Honor, the presiding Judge, nevertheless it was erroneously exercised, and the motion should have been granted.

The case of Senterfeit v. Shealy, 71 S.C. 259,51 S.E. 142, upon which the respondent's attorneys principally rely, was materially different from the present case, in the important particular, that in the case of Senterfeit v.Shealy, the presiding Judge was not requested to ask the jurors, if they were related to any of the parties.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the case be remanded for a new trial.

Only MESSRS. JUSTICES WOODS and HYDRICK participatedin this opinion, and concur in the result.