*1 Co. Telegraph DuBose v. Argument of Counsel. the record without made upon for the to be substitution another action. of bringing Court, this that the order is of of the affirmed. Court be
Circuit DuBOSE v. WESTERN UNION TEL. CO. Telegraph Damages—Mental Anguish Nonsuit.—Sending Co. — — hurry because of preparations to funeral actually taking place about body, condition of the message; and relatives time indicated absence friends funeral, being nothing family from the the deceased and company’s to notice brought information or from informed, are of dam- they to be not elements were indicate “My dead. message: wife is promptly to deliver ages for failure pre- Cypress church. Phone Walter Sunday, Burial five o’clock grave.” pare Rehearing refused. December, Re- Florence, J.,
Before DantzlER, versed. Tele- Western Union B. against
Action W. DuBose appeals. defendant plaintiff, From judgment Co. graph Willcox, for & H. Perrons Messrs. Geo. Willcox The latter cite: As to mental appellant. foundation of 418, C., 531; R., 181; 39 Fed. 70 S'. anguish: C., 29. 71 S. Kershaw, & Galletly P. Messrs. T. G. Slúpp S. W. raise's contra, cite: telegram Delay Ragsdale, 531, 545; presumption negligence: wil- 93. Upon allegations 65 S. without recovered may proof punitive fulness can be C., 325. Tims action main- actual dannage: Watson statute: regard tained without mental *2 C, 325; Per. Jry., sec. C., 439.
The November, in this opinion 1905, case filed 29 was remittituur but held on for up until petition rehearing- de- January 1906. The of the Court was opinion livered by Mr. The this case plaintiff sought Justice Jones.
recover and wanton failure to negligent promptly deliver the telegram: following-
20, 1904.
“August
“To P. McLendon, B. C. Lamar, S- wife “My dead. Burial five o’clock Sunday, Cypress W, Church. Phone grave. Walter B. DuBose.” prepare was at message delivered to- defendant’s operator Timmonsville, C., at M., 7.20' P. Saturday, August Sumter, was office, 7.35, but, transmitted to at relay repeated and calls for notwithstanding- frequent Lamar the it office, Sumter was not received at the office Lamar until the Monday morning, 22d of was not and August, delivered to the addressee until burial, after the was which Church, had at Cypress on at Sunday, August probably five about o’clock P. M. In meantime, the not knowing delivered, had not been message plaintiff Sunday on account condition of the morning', corpse weather, and hot decided to have burial at o’clock two- M. M., P. instead of five P. and sent a mes- accordingly across senger country from-Timmonsville to- for the arrange funeral at said earlier hour. This at arrived DuBose, home Walter brother plaintiff, referred in the “Walter,” as at about one o’clock Sunday, and then for the first time Walter Du-Bose'was informed of -death wife, plaintiff’s- set about to immediately prepare grave. funeral with the ar- party corpse n M., at rived at Cypress Church about three o’clock P. TeeEgraph
Opinion Court. fu- after some Finally, not then prepared. was grave being ready,'the neral church and grave services in the testimony some conflict took There was place. whether between as took place, to when burial actually Two whether about five o’clock. three and four o’clock or “about that the time was testified witnesses the plaintiff testified that for the defendant o’clock,” five one witness it o’clock;” others thought some “nearly five at were present earlier. thirty-five forty persons Some the funeral. *3 as the in the alleged complaint elements of damages conduct
result of and wanton defendant’s alleged negligent private were: (1) expense sending Church; a fifteen to distance of miles conveyance Cypress for want of inability, mental of the (2) anguish because and time, to1 for the reception make suitable preparation dead; depri of the burial of his mental because (3) and consolation of the presence vation the comfort and of the and relatives of his deceased wife friends many himself at her said burial.
At the defendant moved close of plaintiff’s testimony, there for a nonsuit 1. That was two practically grounds: or wilfulness. evidence show either tending to negligence that the 2. evidence to show That was no tending the natural and proxi or mental was injury anguish alleged This alleged. result of the misconduct mate negligence a refused the trial resulted in verdict motion was and defendants moved whereupon in favor of plaintiff; $500 record, in the and trial, on not stated grounds for a new to1the refused. The are exceptions this motion was also trial, raise practi new refusal of nonsuit nonsuit, in in the motion for cally submitted questions a on the as it is not error of law to refuse new trial asmuch the verdict. facts, testimony support if there be tending reference to- whether there question any With 1. in or wilfulness. of delay Proof testimony negligénce a raises presumption telegram negligence. DUBOSE) TpUpGRAPH CO. 221 V. Poulnot v. Co., C., 545; Tel. v. Tel. Hellams S. Co., C., 83; S. Co., 70 Ariail v. Tel. 7 in this case hours, was about delay forty such certainly indicates delay unexplained great negligence. The motion was for nonsuit on the If whole case. there be evidence any to1 tending show and none negligence tending wantonness, show the defendant is not entitled h> nonsuit on the whole cause of action. Poulnot Co., 69 v. Tel. Co., Machen v. Tel. But is not suffi
cient for the plaintiff to on the negligence show part defendant; it is also to' offer necessary evidence tending- show was the injury alleged natural and proximate result of the Ariail negligence alleged. Co., v. Tel. C., 418; Co., Smith In
Arial v. Co., Tel. said, supra, at 422: “The page statute was not intended to make in liable company all cases for mental anguish and where there suffering negligence receiving, transmitting- delivering messages. In order to render company liable mental anguish, must direct, have suffering natural and proximate result of its negligence receiving, *4 or the transmitting delivering The message. must message show its face or the upon must have company of knowledge such facts as will it enable to foresee that the failure to per form its duty be may reasonably expected to result in mental suffering. is not company liable in damages for men tal when anguish, it was merely incidental the failure to tO' its in perforim duty, as such cases the could not suffering be reasonably anticipated and was not a result which it could be said the had in parties in contemplation entering into the contract.”
It cannot be that said the element of expense in sending the referred to messenger was the result of' defendant’s itas was negligence, admitted by plaintiff that he incurred no- in that expense regard, and further was that undisputed the sent not in of consequence the delay the delivering but message because of the determination to
Opinion of the Court. It the corpse. the of the of condition because burial hurry the the delay can not said that be as the inasmuch caused the of preparation grave delay n the of the burial o’clock, time five by the was ready grave had The defendant company as indicated by message. that the parties notice, anticipating, no and no' means five at an earlier hour than seek to' have would o’clock. of some from the funeral reference to- absence
With friends, it can not be said relatives plaintiff’s face of message, either on the defendant company, from, notice at the time to its information any brought that it contract, was within had notice indicating that the relatives and friends of the parties contemplation so of burial time place should have information relatives as It that some of plaintiff’s to be present. appears that well may imagine were and we present frier«ds had if notice others have been timely would present, them, that evidence others could there was no received but if notice been received by have been had present, would should, even whether them. be doubtful may statute, of mental under- under terms broad from take for mental anguish resulting to award from a one or more relatives and friends absence of that the tele- funeral, there should evidence certainly that mental anguish had reason anticipate graph company that there such cause. think would result from We and, therefore, case, evidence in this the nonsuit such should have been granted. reversed, the Circuit Court is and the trial.
case remanded new *5 31, 1906. Curiam : After careful consider- January Per ation is petition rehearing, either 2 satisfied that material of law question has fact disregarded Hence overlooked'. a is no for rehearing. ground Bryant 223 Thigpen. is, therefore, ordered, dismissed, that the petition and that the order heretofore the remittitur granted staying be revoked.
BRYANT v. THIGPEN. 1. Chattel Mortgage Indexing.—Recording mortgage chattel — lien agricultural for less $100 than indexing in book for that debt,” purpose under M.,” the head of “character of the “L. & “amount,” “$25.00,” under is a indexing sufficient aof chattel mort-
gage $25.00. the amount of The fact the mortgage con- securing tained a clause other indebtedness does not effect lien its said for amount. Rehearing refused. Before Clarendon. Krugh, Affirmed. J., From affirming judgment magistrate Bryant F. against W. Thigpen, defendant appeals. J. J.
Messrs. Durant, Wilson & 111., cite: 35 appellant, 478; Code, 1902, 2456, 950; C., 113; 61 C., 268; S. S. 21 C., 332; 43; 22 14 R. A., 12 S. S. 384; Ga., 447; 13 L. Ga., 540; Ga., 230; 40 80 Ann., 917; 2 2d, 24 La. Ency., contra, Davisj Mr. W. C. C., 101; cites: 5 3 S. Ency., 198; C., 1; 559; 57 34 20 571, 529, Ency., R., 565; 376; S. E. Ency., Com., Bl. C., Ill; Laws, 311, Black Int. 554, 562, 563; 251, 110;
This opinion was filed July on petition rehearing, remittitur was held until up 1, 1906. Tihe
February of the Court opinion was de- livered by