56 S.E. 962 | S.C. | 1907
March 14, 1907. The opinion of the Court was delivered by This action was brought by the plaintiff to recover damages for alleged wilful, wanton, and gross negligence of the defendant for delay in delivery of the following telegram received at its office in the town of Kershaw, S.C. on the 20th of April, 1904, directed to J.R. Key, Fort Mill, S.C.: "Come at once, your wife is very low." The message was filed at 8.32 A.M., and transmitted to Fort Mill in eight minutes thereafter. The Fort Mill office was a joint telegraph and railway office, the telegraph agent being also agent for the railroad and express companies. Except from 8.30 A.M., to 9.10 A.M., and during such other hours as local freight trains were at the station, when it was necessary for the agent to perform his railway and express duties, the telegraph office was open from 8 o'clock A.M., until 8 P.M. The business of the office was small, the receipts being ten to fifteen dollars a month, and there was no evidence that the hours during *303 which the office was open for business were not reasonable. The agent at Fort Mill had never heard of Key, the addressee of the message; but immediately upon receipt of the telegram, although during an hour when the telegraph office was not open for business, he made an unsuccessful effort to locate him. Afterwards, between nine and ten o'clock A.M., he ascertained the plaintiff was an operative of the Millfort Mill, and at once telephoned the message to McGregor, the assistant superintendent of the mill, who said he knew Key and could deliver the message to him. If McGregor had promptly communicated the message to the plaintiff, this would have been the quickest method of delivery. The plaintiff upon the receipt of the message from McGregor, which was between twelve and one o'clock, went immediately to his boarding house, changed his clothing, and without making inquiry at the office at Fort Mill, without attempting to hire conveyance, although he had the money and could have made the journey in about the same time over the public highway, and without ascertaining whether any trains could be had at Rock Hill, walked and trotted eight miles along the railroad track in the hope of catching a belated freight train to Kershaw. Upon arrival at Rock Hill, plaintiff found the freight train had passed and that the next train for Kershaw left at 6.30 the next morning; hence he had to spend the night. He testified to the mental anguish caused by the delay in reaching his sick wife; and that, as a result of the walk, he suffered great bodily discomfort, was made tired and stiff, and could hardly sleep that night or walk the next morning. He reached Kershaw about ten o'clock on Thursday and drove seven miles to his father-in-law's house where he found his wife still conscious and rational. She died about six o'clock the following Sunday. Plaintiff attended the funeral, and stayed with his wife's people for one week after the burial. He testifies the discomfort caused by walking from Fort Mill to Rock Hill was a large part of the suffering for which he was suing. *304 A judgment for five hundred dollars was recovered. The defendant appealed.
The defendant's first position is, that the physical pain and discomfort suffered by the plaintiff, in consequence of the hurried walk of eight miles, was not alleged in the complaint as an element of damage, and therefore, the Circuit Judge erred when he instructed the jury to the contrary. On this point the allegation of the complaint is: "That by reason of defendant's wilful, wanton, and gross negligence in failing to promptly transmit and deliver said message, as aforesaid, plaintiff was unable to leave Fort Mill to go to his wife by railroad, on that day, which he could have done if said message had been delivered to him with due diligence, so that the plaintiff, in his earnest desire to go to his wife as quickly as possible, hurried through the country, on foot, to Rock Hill, a distance of some eight miles, but arrived there too late to catch the train going to Kershaw that day, and so had to remain there, at considerable expense and in great anguish of mind, until 6.30 A. M., of said date. He then had to go seven miles in the country to where his wife was residing with her father, and where he found her in a dying condition, she dying on the following Sunday. By all of which the plaintiff was subjected to great mental anguish and suffering, to his damage in the sum of one thousand dollars." When the plaintiff says in the concluding sentence, "by all of which plaintiff was subjected to great mental anguish and suffering to his damage, etc.," he manifestly means all the matters he had just alleged, namely, defendant's wrongful delay in delivering the message, his own inability to leave Fort Mill by train, his hurried walk, his expense, delay in reaching his wife, his anguish of mind, and the subsequent journey on seven miles through the country. If the defendant wished a specific statement of the suffering which resulted from the walk, a motion should have been made to make the complaint more definite and certain. *305
We think, however, the walk of eight miles was not a result, such as was in the contemplation of the parties or could have been reasonably anticipated by the defendant from a failure to deliver the telegram; and for this reason, the pain and discomfort consequent upon it should not have been submitted to the jury as factors which they might consider in estimating actual or compensatory damages. Arial
v. Telegraph Co.,
The refusal of the Circuit Judge to instruct the jury, that there was no evidence to support a verdict for punitive damages, was error. The only fact, upon which even a charge of negligence could rest, was the action of the defendant's agent at Fort Mill, in telephoning the message to the assistant superintendent of the mill where plaintiff was employed, to be communicated to him instead of sending it to him by a messenger. The defendant's duty was to use all reasonable diligence to deliver the message to the plaintiff himself, unless he had authority from him, either express or implied, to deliver it to another. It has been held the delivery of a telegram to the clerk of a hotel, where the addressee is stopping, is a good delivery; Trissal
v. Telegraph Co.,
The plaintiff did not testify to any relations or feelings concerning his wife differing from those of other normal persons in like relation, and there is no foundation for the objection to his evidence on this point.
The judgment of this Court is that the judgment of the Circuit Court be reversed and the cause remanded for a new trial on the cause of action alleging negligence. *308