40 S.C. 524 | S.C. | 1894
The opinion of the court was delivered by
This was an action for damages brought by the plaintiff, a physician, against the defendant for a failure to deliver one telegram alleged to have been sent to him, and to deliver in time another telegram sent by one A. N. Webb from Remini, a village in the neighborhood, to the plaintiff at Sumter, S. 0., in the following words: “Come to Remini soon as possible, man cut and shot.” The complaint contained two causes of action : first, for a failure to deliver a telegram sent; and the second, for delay in delivering another message. The allegations in each were substantially the same: “That one A. N. Webb delivered to the agent of the defendant company at Reiuini, for transmission on the wires of the company, to the plaintiff at Sumter aforesaid, a telegraphic message (as given above), addressed by him to the said plaintiff; and the said A. N. Webb then and there duly prepaid to the defendant’s agent at Remini aforesaid, the proper toll or charges therefor, and the said defendant, by and through its agent aforesaid, for the consideration aforesaid, then and there undertook and agreed to transmit the said message to Sumter as aforesaid, and deliver the same to the plaintiff. “That the defendant failed and neglected to perform the contract so agreed to be performed on its part as aforesaid, but on the contrary the said defendant so unreasonably and negligently delayed the transmission and delivery of the said message to the plaintiff, that the said plaintiff was wholly unable to answer the summons therein contained, to the damage of the plaintiff one hundred dollars,” &c.
From this judgment the defendant company appeals to this court, and moves to reverse the rulings of the Circuit Judge and the judgment, on the following grounds: (1.) Because his honor erred in not sustaining the defendant’s oral demurrer interposed in the case, upon the ground that the complaint did not state facts sufficient to constitute a cause of action. (2.) Because his honor erred in admitting testimony on behalf of the plaintiff, showing special damage sustained by the plaintiff, when no special damages had been alleged. (A full copy of the complaint should appear in the report of the case.)
We must consider that the damages sought to be recovered were consequential and special. “Special damages cannot be recovered unless expressly alleged; and only such damages are special as do not necessarily result from the act complained of. There being no special damages alleged in this complaint, evidence of injury done the property by a snow storm, while it was detained by the defendant, was inadmissible.” See Lipscomb v. Tanner, 31 S. C., 49; Sitton v. McDonald, 25 Id., 68; Livingston v. Exum, 19 Id., 223; Loeb v. Mann, 39 Id., 465; Rowand v. Bellinger, 3 Strob., 373; Clay v. W. U. Telegraph Co., 81 Ga., 285, 6 S. E. Rep., 813. This, in effect, also disposes of the second ground of appeal, charging error in admitting testimony on behalf of the plaintiff, tending to show special damages, when no special damages had been alleged in the complaint. It being necessary to allege in the complaint claim for special