December 11, 1901. The opinion of the Court was delivered by This is an action for $1,950 damages. The cause came on to be heard before Judge Townsend upon a demurrer to the complaint, which demurrer was *225 refused. Thereupon an appeal was taken to this Court. In order to properly understand the questions involved, it will be well to reproduce the complaint, the demurrer and the grounds of appeal. These in their order are as follows:
The complaint in its first article alleges that the defendant is a corporation under the State of New York, engaged in the business of telegraphing for hire, having offices in the city of Columbia, S.C. and in the town of Abbeville, S.C.
"2. That on the 3d day of April, 1899, one J.B. Spivey, the son-in-law of the plaintiff, presented to and filed with the defendant, at its office in the said town of Abbeville, the following message: `Mr. H.F. Jumper, No. 709 Lumber street: Wife very ill. Come at once. Let parents and G. B. Spivey know. J.B. Spivey.'
"3. That the defendant at said time and place received said message and promised promptly to transmit by telegraph and deliver the same to the said H.F. Jumper at his said address in the said city of Columbia, and that the said J.B. Spivey, in consideration thereof, then and there prepaid to the defendant its regular charges.
"4. That at said time the wife of the said J.B. Spivey, mentioned in the said message, was critically ill; that the plaintiff is her father and one of the parents mentioned in said message, and that the same was presented to and received by the defendant to be transmitted and delivered as aforesaid for the plaintiff's benefit, of all of which defendant was apprised at the time of the presentation of said message to it as aforesaid; and that plaintiff on his part in all respects fully complied with the terms and conditions of said agreement.
"5. That although the said H.F. Jumper was at his residence, at said No. 709 Lumber street, in said city, during the whole of the said third day of April, when said message could and ought to have been delivered to him and all of the following day, and although his said residence was within easy reach of the defendant and within its regular delivery limits in said city, the said defendant, wilfully, wantonly *226 and grossly, negligently failed promptly to deliver said message, and the same, through the wilful, wanton and gross negligence of the defendant aforesaid, was not delivered, or offered to be delivered, to the said H.F. Jumper, or any one for him, until the 7th day of April, 1899, upon demand then being made by the said H.F. Jumper therefor at defendant's office in the said city of Columbia; and that in the meantime, on the night of the 5th day of April, 1899, the said wife of the said J.B. Spivey died of said illness, and her remains were forwarded by railroad to Killians, in the said county of Richland, for interment.
"6. That by reason of defendant's said wanton, wilful and grossly negligent failure promptly to deliver said message, as aforesaid, the plaintiff was deprived of seeing and being with his said daughter before her said death, and of accompanying her remains from the said town of Abbeville to the said Killians, and of providing for their proper reception, upon their arrival at their destination at Killians, was subjected to great mental anguish and suffering, and suffered damage in the sum of $1,950.
"7. That on the 31st day of May, 1899, the plaintiff notified the defendant of the matters and things hereinabove set forth, and presented his claim in writing to said defendant for said sum by reason thereof, but the defendant has failed to pay the plaintiff said sum, or any part thereof, and has wholly ignored plaintiff's said claim.
"Wherefore, the plaintiff demands judgment against the defendant for the sum of $1,950, and for the costs and disbursements of this action."
DEMURRER AND NOTICE. — "You will take notice that at the call of this cause for trial and after reading the complaint, the defendant will move the Court for an order dismissing the complaint on the grounds that it does not state facts sufficient to constitute a cause of action, in that the facts stated show (1) no duty of defendant to the plaintiff; (2) no right of action by plaintiff against defendant; (3) no knowledge by defendant that plaintiff's movements would *227 be affected by contents of the telegram, and (4) no injury done by defendant for which the defendant is answerable in damages to plaintiff."
Then defendant gave a second notice of grounds for the demurrer as aforesaid:
"Please take notice that the defendant demurs to the complaint for the reason that the same does not state facts sufficient to constitute a cause of action, in that 1. The action is for punitive damages, and arises ex contractu. 2. The action is for punitive damages, and there are no actual damages alleged. 3. The complaint fails to show that the default alleged against the defendant was the cause of any damage to the plaintiff. 4. The complaint fails to allege any duty owed by the defendant to the plaintiff for breach of which it is liable in damages. 5. The complaint fails to allege facts which show prima facie that the plaintiff is entitled to exemplary or punitive damages."
Judge Townsend overruled the demurrer in a short order, and defendant appealed on the following grounds:
"1. Because his Honor should have sustained the demurrers to the complaint.
"2. Because his Honor should have held that the complaint did not state facts sufficient to constitute a cause of action, for the following reasons, or one or more of them: (a) Because the complaint failed to show that there was any duty owed by the defendant to the plaintiff. (b) Because the complaint failed to show that there existed on behalf of the plaintiff any cause of action against the defendant. (c) Because the complaint failed to show any knowledge on the part of the defendant that the plaintiff's movements would be affected by the contents of the telegram. (d) Because the complaint failed to show that the plaintiff has suffered any damage of any character.
"3. Because his Honor should have held that the complaint did not state facts sufficient to constitute a cause of action for the following reasons, or one or more of them: (a) Because the action is for punitive damages, and arises ex *228 contractu. (b) Because the action is for punitive damages, and no actual damages are alleged to have been suffered. (c) Because the complaint fails to show that the default alleged against the defendant was a cause of any damage to the plaintiff. (d) Because the complaint fails to allege any duty owed by the defendant to the plaintiff, for the breach of which it is liable in damages. (e) Because the complaint fails to allege facts to show prima facie that the plaintiff is entitled to exemplary or punitive damages.
"4. Because his Honor should not have overruled the demurrer."
The great danger to a demurrant is that, for the purpose of testing the sufficiency of the facts alleged in a complaint as a cause of action, he admits those facts to be true. This Court endeavors to be very careful when considering the facts alleged in a complaint, to say that we do not intend to pass upon the truth or falsity of such facts except for the purposes of the demurrer. The complaint here alleges:
First. That the defendant is incorporated under the laws of the State of New York, and is engaged in the city of Columbia, S.C. and the town of Abbeville, S.C. in the business of telegraphing for hire. Second. That the telegram, whose delayed delivery is the cause of this contention, was delivered by J.P. Spivey, who is a son-in-law of plaintiff, Joel W. Butler, on the 3d day of April, 1899, to an agent of the defendant, and the hire actually paid on that day for the delivery of the telegram to Mr. H.F. Jumper, at his residence, No. 709 Lumber street, in the city of Columbia, S.C. [which is about 100 miles distance from Abbeville, S.C.]
Third. That at the date of the delivery of the telegram to the defendant for transmission to Columbia, to wit: the 3d day of April, 1899, the wife of J.P. Spivey, who was the daughter of the plaintiff, Jacob W. Butler, was critically ill.
Fourth. That the defendant, the telegraph company, when it took the telegram in question, promised to promptly transmit the same, and was so received to be transmitted and delivered *229 as aforesaid for the plaintiff's benefit (italics ours). That the defendant was apprised of plaintiff's relationship to Mrs. Spivey and that said plaintiff's daughter lay critically ill in the town of Abbeville, and that one of the purposes of the telegram in question was to apprise the plaintiff, as her father, of her critical illness.
Fifth. That although Mr. Jumper, as the addressee named in the message, lived within easy reach of defendant's office in the city of Columbia, S.C. and defendant knew the street and the number on the street in said city, yet the defendant, having received said dispatch on the 3d day of April, 1899, did not deliver the same until the 7th of April, 1899, and then only when the addressee demanded the dispatch of the defendant.
Sixth. That Mrs. Spivey died on the 5th day of April, 1899, but the plaintiff, as her father, received no notice of it, and did not, therefore, attend her bedside, nor was he apprised of her death until after her remains reached the village of Killians, S.C. and when no preparations had been made for her burial.
Seventh. That the plaintiff alleges that the failure of the defendant to deliver the telegram was wanton, wilful and gross negligence, and by reason thereof the plaintiff being denied the privilege to attend his dying daughter's bedside and also of accompanying her remains to Killians, S.C. and prepare for her burial near there, was grievously afflicted, his mental anguish and suffering was great — to wit: being damaged by the defendant in the sum of $1,950, for which sum he asks judgment against the defendant.
Under this state of facts the defendant asks us to hold that the plaintiff has not set out in his complaint a cause of action against it. The first and fourth grounds of appeal are dismissed for the simple reason that no specific error is pointed out in the same, it being alleged in the first, that the Circuit Judge ought to have sustained the demurrer, and in the fourth, that he ought not to have overruled the demurrer. This will do not great harm to the defendant-appellant, *230 as his other exceptions cover specific allegations of error.
It seems to us that the preliminary question is suggested by the subdivision (b) of the second ground of appeal, for if the plaintiff has by his complaint failed to show that any cause of action existed in him as against the defendant, then we need go no further. If the plaintiff has shown by his complaint that he has no legal claim for redress by the defendant, why his attempted cause of action is futile. But, under the facts alleged in the complaint, has the defendant no duty which it owes to the plaintiff which the defendant has refused to render? It looks to us that when the plaintiff alleged in his complaint that a certain telegram, delivered to defendant for transmission for hire, under a knowledge that Mrs. Spivey was very ill, coupled with the words "come at once; let parents know," and, further, as is stated in the complaint, that "the defendant knew at that time that it was for the plaintiff's benefit" the telegram was being sent, and the defendant, under these circumstances, wantonly, wilfully and negligently failed to send the telegram, there arose a legal duty to the plaintiff owed by the defendant. It is suggested that there was no contract betwixt the plaintiff and the defendant. There was no actual contract between the plaintiff and defendant. But the plaintiff is not suing on the contract. The defendant is not an ordinary person, under the law. Enjoying, as it does, the position of a common carrier, it is invested with aquasi public character. Just as a railroad has made no actual contract with the husband who goes to its station to meet a wife and child coming in at night on a passenger train, on a railroad, such railroad has made no contract with such husband to keep the approaches to its station in such a condition that no injury shall happen through the railroad's fault, and yet if such husband is injured through such fault, the railroad owes a duty to such husband, and when he is injured the railroad can be made to pay him damages. Izlar
v. Railroad Co.,
The next question we will consider is somewhat akin to the first and yet is different from it. Has the plaintiff set out in his complaint a cause of action against the defendant? We must bear in mind that there is a difference existing between compensatory damages and exemplary damages. In this action the plaintiff seeks to recover the latter. The defendant recognizes the force and effect of our late decision of *235 Lewis v. Western Union Telegraph Co.,
2. Grounds of appeal: (a) We cannot say the defendant owed no duty to the plaintiff; for if the facts be as alleged in the complaint, he did owe him the duty of promptly delivering the telegram in question. (b) We cannot say that there was no cause of action, because, as we have just held that, under our decisions, the allegations of facts in the complaint showed such cause of action to exist. (c) It makes no difference that the defendant placidly speaks of want of knowledge that plaintiff's movements would be affected by the telegram; bad as poor human nature may be, it is not unnatural that the plaintiff is greatly moved at his failure to *236 reach the bedside of his dying child or to see that a grave was prepared for her body. The telegraph company, though a corporation, is governed by the knowledge of its agents; whether these agents knew what nature would prompt this bereaved father to do in case he had heard the dreadful tidings intended to be carried to him by the telegram in question, does not matter. (d) the complaint does show how the wicked, wanton or wilful disregard by the defendant of the duty it owed to plaintiff damaged the plaintiff.
3. Grounds of appeal: (a) It matters not that the plaintiff in his complaint set out the telegram. It was but the inducement leading up to the alleged malicious, wanton or wilful disregard of the duty it owed the plaintiff. This matter is settled against the defendant by Pickens v. R.R. Co.,supra. (b) Since the last act of the General Assembly passed in 1898, great liberality must be shown by Judges in regard to actions claiming examplary damages. See the provisions of the act of 1898, found in 22 Stat. at Large, p. 693, which provides: "That in all actions ex delicto, in which vindictive, punitive or examplary damages are claimed in the complaint, it shall be proper for the party to recover also his actual damages sustained; and no party shall be required to make any separate statement in the complaint in such action, nor shall any party be required to elect whether he will go to trial for actual or other damages, but shall be entitled to submit his whole case to the jury under the instruction of the Court." But, apart from this, we may not hold that a party plaintiff must in his complaint for examplary damages set forth any actual damages ex nomine. (c) The complaint does point out his injury. (d) The complaint does point a duty defendant owed plaintiff. (e) We have already overruled this position and given our reasons hereinbefore therefor. We have thus considered all of defendant's exceptions and have overruled the same.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed and that the action be remitted to that Court for a trial. *237
The complaint alleges that the message was presented to and received by the defendant to be transmitted and delivered to H.F. Jumper for the plaintiff's benefit. Under these allegations, the plaintiff, as the party beneficially interested, occupied a contractual relation with the defendant. Jumper was the medium through which the message was to reach the plaintiff. The complaint alleges that the contract was broken by the defendant in such a manner as to constitute a tort; and as he was the party sustaining damage, we fail to see why he should not have redress for the alleged wrongful violation of the contract.
I, therefore, concur in the judgment announced in the opinion of Mr. Justice Pope.
MR. JUSTICE JONES concurs in the result.
The delay which has already occurred in filing this opinion (for which it is but a simple act of justice to the other members of the Court to say I, alone, am responsible, owing to an unfortunate combination of circumstances which it is needless to state here) has been such as to forbid any further delay by undertaking to indicate at any length the conclusions which I have reached. I must, therefore, content myself with a simple statement of some of the reasons, without elaboration, why I am unable to concur in the conclusions reached by Mr. Justice Pope in his opinion. Inasmuch as the complaint, as well as the demurrer thereto, have been fully set out in that opinion, it is unnecessary to do more here than to state, briefly, the grounds upon which, I think, the demurrer should have been sustained.
1st. It does not seem to me that the facts stated in the complaint, which, of course, for the purposes of this inquiry, must be taken to be true, are sufficient to constitute a cause of action in favor of the plaintiff against the defendant company, for the following reasons: (a) I do not see that the *238 facts there set forth show that there was any contractual relation between the plaintiff and the defendant. While such facts may be sufficient to show such a relation between the sender of the message — J.B. Spivey — and the telegraph company, or possibly between the person to whom the message was addressed — H.F. Jumper — and the telegraph company, yet I am unable to perceive how the facts can give rise to any contract relation between the plaintiff — a third person — and the telegraph company. There is no allegation that either Jumper or Spivey was acting as the agent of the plaintiff in the transaction narrated in the complaint. The fact that the message "was presented to and received by the defendant to be transmitted and delivered, as aforesaid, for the plaintiff's benefit, of all of which defendant was apprised at the time of the presentation of said message to it," does not show, or even imply, that defendant was asked to assume, or did assume, the obligation to deliver the message to the plaintiff. On the contrary, it plainly implies that it was not intended or expected that the defendant should assume any such obligation. Hence, if plaintiff sustained any damage by reason of the failure of the plaintiff to receive such message in due time, the defendant cannot be held liable to the plaintiff for such damages. (b) I am unable to perceive that the facts stated in the complaint are such as would give rise to any other relation between the plaintiff and defendant, which would give the plaintiff any right of action against the defendant in case the plaintiff failed to receive such message in due time, for those facts do not show that the defendant owed any duty to the plaintiff to deliver to him such message in time; and, on the contrary, those facts plainly imply that the duty of delivering the message to theplaintiff, if imposed upon any one, it was imposed upon Jumper and not upon the defendant. Hence, if the action should be regarded as an action ex delicto, the facts alleged do not show any tort of which the plaintiff has any legal cause of complaint, as against the defendant. For if the defendant owed no duty to the plaintiff there could be no *239 breach of such duty — no tort. The fact alluded to above, that the defendant was apprised of the fact that the message was intended for the plaintiff's benefit, could not affect this view of the case for in the absence of any allegation that the defendant assumed the duty of delivering the messagepromptly to the plaintiff, and that duty was assumed by Jumper, the defendant certainly could not be held liable for his tort in not performing that duty; for, it will be observed that there is no allegation in the complaint that Jumper would have performed his duty of delivering the message to the plaintiff, if the defendant had delivered the message to him (Jumper) in due time — even if such an allegation would have helped the matter. In this aspect of the case, the fact that defendant was notified that the message was intended for the plaintiff's benefit, would not avail the plaintiff; for, legally speaking, "no tort can be for the benefit of another," as it is well expressed in the argument of one of the counsel for the appellant. So that whether the action be regarded as an action ex contractu or an action ex delicto, I do not think the facts stated in the complaint are sufficient to constitute a cause of action in favor of the plaintiff, as against the defendant.
In the second place, it seems to me that the action must be regarded as an action ex contractu, and if, as it seems to be conceded, and necessarily conceded, as there is no allegation of any actual damages, outside of injured feelings, the action is for the recovery — not of compensatory damages — but for punitive or examplary damages. I do not think such damages can be recovered in an action ex contractu.
In the third place, the default alleged to have been committed by the defendant cannot be regarded as the proximate cause of the injury complained of by the plaintiff; for it may have occurred from an intervening efficient and proximate cause, the neglect of Jumper to deliver the message to the plaintiff in due time, even if there had been no default on the part of the defendant; whether such neglect would have occurred, is a matter of conjecture only. *240