*1 Telegraph v. Co. Walker Syllabus. sustained, all is and others are The sixth exception overruled. Court, of this judgment
It is judgment the cause remanded for a new be reversed and Court Circuit trial. TEL. v. WESTERN UNION CO.
WALKER Companies. Telegraph to deliver a —In suit' for failure 1. Evidence — son, informing dangerous father of illness telegram, death, come, body kept after length him to time requesting accompany body, may be considered as in and failure of father parties message when was received. the minds of message unintelligi- of a received in 2. addressee Ibid.—Ibid.—That not, but could because the wires were telephone, ble form tried down, responsive allegation in answer addressee did not use is damages. power means in his reduce all pro evidence con as to when the 3. Nonsuit. —There addressee particular place, could have reached a if message of a had delivered, form, proper properly in nonsuit promptly been refused. Jury may infer wantonness from 4. failure carrier Wantonness. — message upon request to have it repeated to correct error when, where, exactly, uncertainty determining how and message changed. whom the Anguish Telegraph Companies Jury.— — 5. Contracts —Mental — from this State to be delivered in Louisiana When written, correct, upon request not delivered the evidence office, occurred at repeating that the mistake initial shows addressee anguish for mental may damages pleading recover without and prov- anguish common law rule as-to ing that the mental has been changed question, where was the changed, State. is for jury. granted
6. should because the Nonsuit failure deliver as may exemption be referred to some printed written on back of answer, no reference was made in message, which nor attention filed, especially to it when of sender called where the exemption relied damages. amount of fixes an Company Negligence. Telegraph cannot relieve itself 7. — from negli- message. on back of stipulation gence by *2 Charge. Judge jury upon should not instruct an 8. as to which issue — there is no evidence. refused, First, properly on grounds: 9. New Trial there was no evi- delay delivery dence to show that of message was proximate second, injury; cause of the there no evidence which misconduct; third, could infer wanton negligence wilful only one inference could be drawn from the evidence. Rehearing 10. refused. Divided Gourt.
Before J., Edgefield, October 1905. Af- Gage, firmed.
Action B. Walker Western against Union Tele- by J. Co. From defendant graph judgment plaintiff, appeals. Fearons, Messrs. Geo. H. Nelson & Nelson and Tomp- Wells, for cite: kins & should appellant, Evidence not be not in admitted on point reasonably contemplation con- of 356; C., 10, C., 381; C., 60 70 61 tracting parties: S. S. S. E., 823; C., 329; 295; sec. C., on 72 S. 70 Joyce Elec. S. 543; C., 423, 29. was not the Injury alleged 71 proxi- S. deliver, as C., 120; mate cause written: 72 S. of failure C., 447; W., C., 418; 568; Tex., 130 N. 56 91 70 S. S. 56; Tex., 9; Tenn., 208; 88 Ind. 206; 104 7 30 App., S. W., 937; 396. evidence W., No wantonness: 47 64 S. C., 545; C., 256; C., 491; 66 72 Roberts v. Tel. S. S. S. C.; Co., C.; C., 71; Tel. 60 Co., v. 74 Murray 74 S. S. S. 500; C., C., 9; C., 444; C., 42; 64 65 66 69 70 S. S. S. S. C., 256; C., C., 452; 69 453. Breach 72 S. con- S. S. tract occurred delivery changed message 70 La.: S. C., 386; C., 516; C., 330; Wall., C., 83; 1 72 57 71 S. S. S. C., 254; 98; S., 190; C., S., 154
310; 70 U. 146 U. 66 S. S. S., 119; C., 140; 1378; 657; 22 122 Ency., 194 U. 73 S. S., 347; 162 650. S., Telegraph U. company may U. E-, on rules and regulations: Joyce recsonable adopt Elec. C., 71; C., 358; 718, 680; 715, 717, 19 5 705, secs. S. S. C., 303, 380, 506; C., 516; 18 C., 83; 72 71 S. 70. S. S. A., 102; S., R., 717; 124 444. Court 11 R. U. Fed. E. 33—75
514 C. of the Court. S.
Opinion case depends solely questions direct where should verdict C., 378; C., 30; 393; 63 C., 43 57 law: 119, 13 S. S. S. pleaded, presump- C., La. 380. Laws S. C., 437; there: 65 the common law prevailed tion was S. C., 116, 539; C., 98, 570; C., 418, 73 354, 65 S. S. 70 S. S., C., 140; Wall., 310; 516; 98; 1 U. 73 174 66 S. S. Whether 190; S., 119. S., 657; 194 U. 146 U. uncertain: 14 Ind. is too have reached Bdgeñeld, could ; 586; Tex., 343; Tex., Kan., 353 Ct., 341; 76 App. Torts, 739; W., 386; Red., sec. Pollock on & Shear. As to apprehensions 37; 8 Ency., secs. 36 *3 C., new trials: 69 granting and discretion S. 479; 1044; E., 535; E., 881; E., 13 11 37 41 S. S. S. S. W., W., 534; 30 1107. S. Thurmond, J. N. G. and G. McG.
Messrs. Bvans S. Wm. responsive objected contra, cite: Simkins, Bvidence C., 443; C., C., 8; 303. 60 73 allegations: 70 S. S. S. without evidence objec- lies admission No exception includes C., 103. Statute dam- 377; C., tion: 73 S. 70 S. showed wanton- C., Bvidence 69 531. anxiety: S. ages for C., C., 350; C., 419; 35 444; ness: 65 C., 73 70 S. S. S. S. 443; C., 498; C„ 74; C., 54 57 484; C., S. 73 60 S. S. S. A., interstate R. messages: statute covers 54 Our 353. L. A., 497; A., 113; 486; 34 R. 161; Y., 56 R. N. 45 R. R. 413; A., C., 140; C., R. S., 788; 43 37 139 73 S. R. U. S. 88; 633; C., 484; 314; Mo., 113 39 37 App., 39 Mo. S. relieve is void: negligence 1043. Contract Ency., 744; A, 711; 34 R. A., R. C., 153; 36 55 9 R. R. R. R. S. C., 1105; ed., 789;-34 S., 497; Ency., A., 163 U. S: 146, 519' was handed down on October in this case opinion
The for petition rehearing on stayed remittitur 3, 1906, but until 12, The the Court opinion 1906.
December delivered April This action came Pope. Mr. Chief Justice
trial October, 1905, at the Common Term of Court of Pleas for The County. verdict was for the for the sum of $950.
The sets forth complaint that the plaintiff and his family resided in the C., town of Edgefield, and had so S. resided about one year. 1905, last of During he April, absent in the temporarily city Orleans, of New when Mrs. Walker, wife, B. telegraphed him as follows: J.
“Wire address after your to-day. Baby had convulsions this now.” morning. Resting
To this telegram answer following was sent and received: Walker,
“Mrs. B. Be Edgefield, C. here S. to-morrow J. Wire Monday. again to-night child’s condition. Will come if needed.” sent Evans, N. G. following Esq.:
“Edgefield, 29th, 1905. Walker, B. Orleans, Da., New Charles Hotel. St. “J. ill; Toots convulsions. Better desperately come.” *4 The was delivered following Western by Union Co.: Telegraph C., 29th,
“Edgefield, S. Walker, Orleans, B. Da., New Charles Hotel. St. “J. Ties all displayed; convulsions better now. N. G. Evans.” “Toots,”
The word as mentioned in said tele- original gram delivered said N. by G. and transportation Evans aforesaid, as delivery nickname for Walker, B. J. the son Jr., of this The plaintiff. Walker, said B. Jr., J. at the time ill at the home of being desperately the plaintiff C., of Edgefield, which fact the S. agent defendant was well told Mr. apprised, being that the child Evans was unconscious. When the plaintiff received the afore- said he copied, as went at once to the telegram agent of defendant asked that the telegraph company and telegram
Opinion of Court. as There- it was not received. intelligible as repeated, received, Edge- an be from claiming answer upon field, that the first two in the were “Toots words in the copy other made change being desperately” —no reading, New agent dispatch made Orleans—the all better “Toots convulsions now.” desperately; lulled that he was into alleges security by The plaintiff now,” that if the as sent the words “better and dispatch come,” he N. had retained the words “better G. Evans once, New at city would have left Orleans the bedside of his child. He alleges effort reach dying 8.35 he have left that o’clock for night could Edge- field, C., that he have reached during and could S. 30th, in time to see the remains of his Sunday night, April child, the died and having Sunday child between morning o’clock. has suffered and complaint alleges mind, and annoyance, still suffers stress of great anguish and and physical pain injury, arising deprived being and consolation of his said son privilege seeing illness, last life and his and of his as body during seeing in death at and his lay accompanying S. Beaufort, C., and of to his remains to administering illness, and in his said last and his giving sympathy wants child, to those dear to him and and of receiving said support event, near in such relatives and sympathy trying occasion, on so an at his home sad and of being mother, and its those said child thought negligent child’s plaintiff, by and dear to and his said near occasion; sad an this relatives so near dear been to such subjected great physical pain having to cause him anguish suffering mental injury; and has suffered and still suffers *5 sleep, great lose much wanton, all due regret, and anguish physical pain, defendant and its ser- negligence reckless wilful and transmit and deliver correctly failing agents, vants worded and delivered originally message original said for Wherefore, transmisión. the plaintiff demanded judg- ment the defendant against $1,995 for sum of and costs. answer, other amongst avers that things, defendant has not sufficient information to know that the plaintiff was a citizen and resided at It Edgefield, C. admitted S. the allegations in two of the paragraph complaint, that defendant was and is a telegraph and was and is company, as a common carrier engaged and transmitter of telegraph hire, messages as such being engaged in transmitting over its line messages of wire other points, from among town of to the Orleans, Ea., of New city and that at the time alleged by plaintiff defendant had and has officesfor transaction of its business and agents therein for that It purpose. also admits that the telegram N. signed G. by at the office presented Evans defendant for transmission and delivery.
It denies the etc., of the description set forth telegram, character, and matters of that pleadings but set forth that the damages suffering by plaintiff due to his own for the reason that negligence, the telegram, Orleans, as delivered to him in New errone- obviously ous, and diligence slight part requesting corrected, such would have resulted the error obtained, detected the correct promptly thus relieving plaintiff alleged damages That the plaintiff failed to exercise the dili- suffering. of him law to reduce the gence required by damages he he suffered reason of the of this alleged negligence defendant. If he had exercised such he diligence, would have suffered no or damages injury.
Both to this action parties introduced That testimony. to show that the N. tending B. Walker was in the G. hands placed Evans J.. after that sent Mrs. defendant’s Walker but before agent dinner-time, IS and 1 o’clock. The between did when or where the alteration of his attempt explain was made defendant and its agents dispatch *6 Telegraph Co. Walker v.
Opinion of the Court. able, servants. That he would have been in case he had received the its to reach dispatch integrity, Edgefield, 30th, April on also tended Sunday night, that the have show made demand to telegram that the same was its repeated upon discovery incompre- hensible, and that when it was so was mani- repeated still better, fested that the child was and also thereby 30th, after he use of his best endeavors on Sunday, April death, notice of son’s he was able to reach Beaufort got in time attend the interment of his child Monday. hand, the the other defendant tended testimony On left over the line of the dispatch show defendant, 29th, after 4 o’clock on Saturday, April reached New without That delay. repeating Orleans “better in the the words now” still remained message, tended to show that the use of furnished. Also copy means for his could not have acceptance, open in time to see the child in life to have reached until received a remains of said child sight during Monday. ' for a After a for the defendant moved verdict plaintiff, trial. This refused the Circuit The Judge. new was of the Circuit Court judgment defendant from appealed on the grounds: following I., II. his Honor erred per- “Because
Exceptions witness, Evans, N. over of defend- objection G. mitting Ask counsel, him ant’s as follows: Court: testify Simpkins: there. Mr. body kept how long A. some there? About kept How body long The error hours.’ thirty-odd irrelevant and not in contemplation incompetent out of at the the contract made which time parties arose, wording it could not be inferred tort a condition would arise. such “2. Because his Honor erred: Evans, witness, over objec- In N. G. “(a) allowing Did counsel, ‘Q. as follows: testify tion of defendant’s *7 the it the as body Mr. Walker have privilege attending object. carried Beaufort? Mr. Nelson: We was to child’s if Mr. went with the body. Court: Ask him Walker the Mr. Did Mr. Walker with child’s go body Simpkins: Q. No, to Beaufort? A. sir.’ to the In Mrs. Walker over testify, objec- allowing
“(b) Monday morning, tion of defendant’s counsel: On ‘Q. and took A. Beaufort did do? We went you what It is not Mr. We the— Nelson: object. relevant.and Mr. Simpkins: the the parties. Q. contemplation * * * A. the Mr. Walker there In time did get What o’clock, he time, at IS and we had the burial some morning before, at were carriages a as the there few minutes got the door, have but few minutes at house.’ the did not a witness, Griffin, to the Mrs. In Charles “(c) allowing counsel: Did ‘Q. over the of defendant’s objection testify, No, A. he did not.’ at all? you Mr. Walker accompany over objec- the plaintiff testify, In “(d) allowing What counsel: time did ‘Q. you get of defendant’s tion IS o’clock.’ and A. Between half-past Beaufort? so said testify error each of witnesses allowing “The not in was irrelevant con- that the same and sent, the time the parties templation damage contemplated by was not an element of and not statute, remote speculative, same being of defendant.” result of act proximate here suggesting raised upon points will now pass A¥e erred, first, in certain testimony, Court allowing defendant, received, not- to be which objected second, because over- objection; such withstanding third, nonsuit; because motions for of the several ruling In favor refusal to verdict direct Judge’s in his defendant; fourth, to the errors Judge’s charge the jury. Evans, for the plaintiff, Mr. a witness When (a) stand, he was asked how it seems that long he were kept replied of the child remains Telegraph’ Opinion of the Court. to this from its death on question Sunday —that its to Beaufort on removal remained Monday, true, It is that allowed Edgefield. margin law in based giving receiving testimony upon that tort not connected with the sued for position anything should not be allowed in but seems to us that testimony, sent Mr. to the he dispatch plaintiff wherein Evans come,” used the words “better the worde “desperately with ill,” with fact notified on defendant was that the child was ill and Saturday morning dangerously die, would the defendant likely would apprise *8 death of the child and the of the father were in presence of both sides of this and such contemplation controversy, case, to the death the child questions being relating bedside, and the of the father its delay could reaching and, therefore, be said to be the minds of both parties, is this testimony competent. The remark same be made as to
(b) may competency Evans, Mr. he when stated that the testimony did not have plaintiff privilege accompanying his to If remains of child Beaufort. it was help- anything, case, it ful to defendant’s but seems to us that all of it was competent. The to Mrs. Walker’s objection
(c) regard to the remains to Beaufort no serious taking moment, because she did not answer the after question had that Mr. been Walker objection interposed, joined on its to the funeral did not amount to cortege way grave, anything. that Mr. is of no moment Walker that testified
(d) So Beaufort between 11.30 he reached o’clock. These are overruled. exceptions
“III. Because his Honor erred in the plaintiff, allowing counsel, over of defendant’s to objection that he testify office telephone ‘went to and tried to telephone Mr. You Edgefield. (Argued.) Simpkins: tried Yes, sir, A. but wires were telephone? not responsive that it was down.’ The error being of the complaint.” allegations error in plaintiff’s
As to this exception alleging he went to the office telephone allowed testify while on Saturday evening telephone tried because the think this is responsive, in New Orleans —we use all the did defendant charged that he alleged in his to reduce damages means power defend- that he suffered reason negligence the_ to show competent ant. It perfectly that he but repeated, that he not had only dispatch friend at to his wife and telephone Edge- endeavored field, this was denied means information receiving him wires were down. defend- because telephone is has made this competent. exception ant’s answer overruled. witness, his Honor erred in allowing
“IV. Because counsel, Evans, N. of defendant’s objection over G. If evidence that Mrs. Walker testify: ‘Q. sent, it sent, if it before must your message was sent before 1.15 P. M. ? Mr. have been delivered necessarily A. If you We conclusion. will object; Nelson: *9 Mr. will see that Harrett him- you look at the agreement was delivered in the time self agreed upon slip Augusta, agent’s New Orleans according me; see that it was abso- will you shown delivery slip for the to have such a date and telegram lutely impossible at the time shown you.’ delivered in New Orleans witness, of the and the conclusion error that was being tele- for itself. The on the said telegram spoke mark Walker, marked as filed witness to from the gram being referrel to M. and the agreement at 4.55 P. in Edgefield, in New was delivered to plaintiff the witness stating The witness losing 5.05 P. M. the same day. at Orleans one hour between time of the difference of Eastern sight Orleans, New Central time at
Opinion of the Court. time the was delivered in telegram Eastern New Orleans at 6.05 P. M. Evans,
N. G. when as to the questioned time at which he delivered the sent to Mr. Walker on the 29th 1905, if it April, asked was sent before or after that of Mrs. Walker. to> the defend- objected ant. The attention was called the written attorney’s of the and defendant’s agreement plaintiff as to attorneys time when messáge delivered New Orleans. While this was no was taken to the irregular, yet objection an’d,therefore, between the colloquy this is over- attorneys, ruled.
“V. Because his Honor erred in not the motion granting nonsuit upon first to wit: ‘Because the ground, testimony establishes fact that even if defendant was in not negligent transmitting message properly, the evidence fails to that the show mental anguish direct, the cause from was the natural alleged result of the defendant’s approximate because negligence, from testimony, uncontradicted one inference can only law, be drawn as a matter to wit: improper transmission of did not deprive plaintiff alive, his child while or after it was right seeing in the coffin at and it not put did him Edgefield, prevent C., remains from Edgefield, S. accompanying Beaufort, C.’ The error that the uncontradicted established the fact that the could Orleans, La., have reached from New Edgefield, S. child, before death of the or before was taken body Beaufort, if he had left New Orleans immediately upon as the himself testified he receipt telegram, could not have arrived there by railroad on account of the schedules between and because of Augusta *10 absence of that the error in the transmission of proof was the cause of the proximate injury plaintiff sustained, is have and because there is an entire alleged Term, 1906. suffered by absence proof any anguish of the defendant.” default account alleged an error not It committed alleged is Judge the first ground. for a nonsuit upon motion granting on both There It is a of fact. pure question issue, testimony, such and there being sides of this This exception his correct light. viewed duty Judge is overruled. a nonsuit his erred in not Because Honor granting
“VI. does ‘Because the evidence to wit: on the second ground, wilfulness, show, wanton show, not nor it tend to does any ness on the defendant part or recklessness The error a wilful tort.’ upon cause based wilful that evidence failed to show defendant, but on ness part or wantonness on was transmitted established contrary had same defendant delivered promptly, there was no evidence so requested, when repeated warrant such damages.” a character as to whatever such to find the defendant far influenced were jury How conduct, it is its or of wanton wilful negligence guilty n the uncer- It be that for us to comprehend. may difficult when, where and how changes exactly in determining tainty made, the same were were whom in the telegram opportu- When an made, circumstances. were significant done wrong the defendant correct was afforded nity its failure done. Whether was not plaintiff, wanton, for the of fact questions wilful or were the Circuit decide; therefore, it not error in Judge for a nonsuit should that the motion to hold refuse overruled. exception granted. á erred non- Honor granting Because
“VII. case, there was no evidence to the whole because suit as damage, proximately causing either of negligence wilful tort.” fact, and there is no reason questions
This presents the Circuit erred Judge grant suggested why refusing *11 Telegraph Co. v. Walker Opinion of the Court. the on nonsuit the asked for. This grounds exception is overruled.
“VIII. Because his Honor erred in not the non- granting suit on the third to wit: ‘Because the ground, cause of action State, did not arise in this and in the absence proof, will be the that presumed common law prevails, 5 which does not permit a for mental recovery anguish with
disconnected the absence of any bodily in a injury where the foreign State cause of action arose.’ The error the that uncontradicted estab testimony lished the fact message correctly transmitted Ga., Edgefield, Augusta, and from Augusta Atlanta, Ga., and the alleged contract, breach of out this which cause of arose, action occurred in New Ea., Orleans, when plaintiff, delivered to laws of the latter in reference to a State recovery for mental in the anguish, absence of actual damages, was not pleaded.” ground appeal a presents question. serious
There is no doubt but that the place under con- delivery consummation; tract to the refers but point case bar, while the B. Walker was delivery to be New J. Orleans, it was not so delivered. The office yet at called deliver same to the upon according testimony, besides, made mistake in message; repeating exact the line of wire where the point mistake occurred true, has not been determined. It is Augusta and Atlanta seek to wash their hands of for the any responsibility wrong for the done but whether it plaintiff, say are, therefore, has been done We sucessfully. opin- ion that there no error as here Circuit Judge, of. This is overruled. complained exception “IX. Because Honor erred in not non- granting fourth and fifth wit: Because suit grounds, ‘(4) establishes fact was writ ten forms used the defendant com one blank upon that the defendant stipulation which contains pany, *12 the the 6 will not be liable in for mistakes in damages transmission of any repeated message beyond fifty same, in the unless times sum received sending specially ' ‘ sured. this the contract the is between parties.’ ( ) And the in Because the showed existence of errors testimony only delivered, the this not sufficient of is message proof as it be referred to some cause negligence, may reasonably the terms of the contained in the contract.’ exemption within “The error in there was no testimony showing being in instruments to to failing provide proper negligence skillful the is bound the terms operators, employ transmitted, the the contract under which was message breach of is and for which this action alleged brought, limited in his to the sum recovery agreed upon or mistakes in the contract for unavoidable accidents said question.” transmission message transferred It seems that the of Mr. was message Evans called a form. No attention was him to blank telegraph in fine on the fine or stipulation printed type to any print to Mr. nor said delivered was back of when Evans under to the same in the answer. We hold reference that the nonsuit should not have been circumstances those rate, if such stipulation these At any on granted grounds. to restrict operate could be held on the back telegram nonsuit it could for any damages, surely a recovery in some amount is ad- recovery a insisted where upon be is overruled. exception This mitted to be proper. a to direct verdict his Honor refused
“X. Because that the cause of action showed the testimony ground Carolina, and in holding: arise in the did not State South what say point it to T shall leave along entered route, if words changed any, it was delivered yon in which here into- words Whereas, should have held as his Honor der.’ arise in cause of action did not law, that the matter uncontradicted Carolina, because South v. Opinion of Court. transmitted correctly showed Ga., Au- and from office relay Augusta, Atlanta, uncontradicted, fact Ga. gusta jury.” error to submit question To answer this tort of is a serious one. This question as to' locate the so construed duty the defendant is be Orleans, Ea., alone at would to take New place delivery action. It vir would necessarily destroy plaintiff’s right lo that it be able to plaintiff’s duty tually hold occurred. the disaster to cate the which spot relies The defendant upon law. cannot Such S., 650, James, 162 and W. U. U. case Tel. Co. of W. U. *13 S., 347, the doc Pendleton, support U. Tel. v.Co. made statute cannot be Carolina trine that the South trans in the limits of this regard effectual State beyond sent from this of and State delivery telegrams mission held, Louisiana; a contract as has been but delivered in be of a from-a telegram place transmission made in Iowa Missouri, the law by in governed in that to a place State company Iowa, telegraph the proprietor of making transmission, Tel. v. W. U. in Reed all mistakes liable for “The con 497, Court 492, saying: A., R. Co., 34 L. to its terms it was Iowa, in and tract made according was Does the circum in that State.” performed be partially in Missouri exempt partly be that it was to performed stance not. The think most clearly ? of Iowa We the laws from interstate communi attempts regulate in no sense statute cation by telegraph. Liverpool the case of the in held thus
It also been has S., 453, that the 397, Co., 129 U. v. Phoenix Co. Steam are to contract of interpretation nature, the obligation made, it is unless where place law by be governed in it, had some other law the time of making the parties, Co., v. R. R. in Fraser has also held own view. Our State a contract aof where the law State “That 140: 73 S. in in either whole part, be performed and is to is made But interpretation.” nature, validity to its as governs Term. held, have this repeated we previously Carolina, which reinforces the State views we South hold, therefore, have just expressed. We the tort of the defendant was committed within this ex- State. is overruled. ception
“XI. Because Honor erred in plaintiff’s charging and fourth third without to such requests, adding requests that the transmission of the improper telegram question the direct cause the mental if proximate anguish, suffered The error that his plaintiff. any, should in each of said have requests Honor charged that the defendant could be held liable for the mental suffered unless mental anguish anguish caused proximately directly by negligence transmit the defendant failing message correctly.” here seeks error charge Judge defendant with and fourth requests third without charging that the transmission of to such requests improper adding cause proximate direct and question the telegram if the plaintiff. suffered We any, of the mental anguish, sufficiently in his has general charge, think Judge, course, herein. the recovery the deefndant Of protected the negligence where only *14 the could had plaintiff by cause of the direct anguish was proximate defendant overruled. exception the plaintiff. to the in Because his Honor erred refusing charge
“XII. defendant, ‘4. cor- other wit: request fourth the Like business, a tele- in a engaged public or individuals porations rules and the right provide regula- has company graph its services engage tions, all persons desiring with which that the rules must be the limitation subject comply, must in question message If the you reasonable. find used the defend- by the forms one of regularly upon written between the parties it stipulated wherein was company, ant the send- indorsed on regulations of the printed reason defendant, that the defendant would the in use by blank ing mistakes, the transmission for in damages liable not be
Opinion the Court. the re- times amount any repeated message, beyond fifty same, and that the a re- for sending ceived one, the I is bound peated charge you the is the contract between parties, which stipulation, bound, are ver- your and sendee by which sender defendant, unless shows dict must be for the plaintiff care, that the defendant not exercise due but was negli- did instruments or employing gent provide proper failing an fact of the existence of skillful The mere operators. as delivered is not sufficient proof error referred to some as may reasonably negligence, of human or other cause control beyond atmospheric agency.’ That request stated correctly
“The error being: (a) having right provide in reference to defendant law of its busi- rules and for conduct reasonable regulations is made his no reference ness, and in the charge general Honor thereto. considering from precluded That
“(b) of the mes- bulling transmission or whether correct which the defendant one of those accidents over sage due such an accident and not control, and if it was no had part of defendant in cn the failing to any negligence skillful employ or to operators, instruments provide proper recover the amount agreed only could not then contract, the defendant did not exempt in the which upon from but only liability for negligence, from liability its control.” beyond causes accidents other did charge that the Circuit Judge general holdWe “I this I con matter, for he said: charge you this cover speak is, its law; words a plain telegraph, ceive themselves, the contract on no matter what is, not relieve telegraph the blank would back of *15 act on its part. from any negligence company relieve themselves by cannot public Those who serve a release negli from paper by on the back of Contract gence.” TerEGraph
Warker (b) Nor were the jury precluded from considering whether the incorrect transmission of the was one message
of those accidents over which the defendant no had control. There was no offered on proof subject and the of the charge should Judge not have in cluded any reference thereto. This exception is overruled.
“XIII. Because his Honor erred in to refusing charge defendant, tenth request If wit: ‘10. find that the contract out of which arose, this cause of action State, was not breached in the but in some State, other I that, under the charge you your verdict must pleadings, be for defendant.’ The error that the uncontradicted established the fact correctly transmitted from Ga., and Augusta, Atlanta, Ga., from Augusta and the breach alleged contract, out arose, of which the action in occurred New Orleans, La., when the message was delivered to plaintiff, the laws of the latter in reference to State recovery mental anguish absence actual damages pleaded.”
We have a already considered similar exception and have We, therefore, the same. overruled overrule this exception. Because his Honor “XIV. erred in ‘If charging jury: Evans, Mr. if Mr. Walker filed with the tele- and the undertook to graph company, telegraph company line, its whether it carry message over a different 1,000 miles, their duty off it over carry State line; and if undertook every mes- part carry it, start to failed do finish and then it is liable sage under law of where undertook do ser- State Now, here what m charged complaint? vice. time, somewhere, is that at complaint some
charge which was delivered to the way, some was distorted telegraph company changed, etc.’ That the cause of action only
“The error arose being: (a) breached, Orleans; contract was to wit: In where the New 34—75 *16 v. Co.
Opinion of the Court. and in the when the defendant virtually charging jury C., to to transmit from message Edgefield, undertook Orleans, Ea., failure its any part it was liable for on New so, conditions which arise. irrespective any might do confused, in that his That the misled and “(b) jury leave it to the jury say Honor first stated that he would route the in the telegram at point change what along made, that the defendant was and in afterwards stating it first undertook where under law State liable do service. in the fourth definitely That the complaint alleged
“(c) re- accepted that the message thereof paragraph transmission, and that the defendant for ceived its and agreement, in conformity promise at with Edgefield, delivered not the one did transmit which message, whereas, testimony transmission; the uncontradicted it for transmitted filed was the fact that established beyond the errors occurred correctly Carolina.'” of South limits of State error made Judge that the Circuit not think doWe jury say, It was left to of. complained as here its line of wire offered, at point what under changing the original its error by committed the defendant and con- was misled think not do message. We say must The jury did state. his Honor fused what and received accepted which was whether and was was distorted defendant Edgefield, S. The defendant delivery. forgets received same message at a request sought the defendant the testimony that by transmit correctly office have the Edgefield This exception so. to do failed completely message, is overruled. defendant’s in refusing Honor erred Because
“XV. for the following minutes on the trial for a new motion ' reasons: estab testimony tending no there is Because “(1) of the jury. verdict or sustain fish' TerEGraph Warker That there is an “(3) entire absence proof *17 in the of delay delivery tifie was the telegram proximate cause of the plaintiff to have injury alleged sustained. Because there
“(3) is an entire absence of of proof any actual suffered the on damages plaintiff account of the default the of alleged defendant. Because there
“(4) is an entire absence of testimony to establish wanton tending misconduct, wilful negligence, or such a state and frame of the on part mind de- fendant as will pertnit recovery exemplary damages. Because, from the
“(5) uncontradicted and undisputed one can testimony, only inference be drawn as a matter of law, wit: the That in the delay of delivery the telegram did not the of deprive plaintiff the of his child right seeing alive, while did not him from prevent and the seeing in death.” body not that
We do think the committed Judge error in it to the leaving jury weigh offered in the whole case to determine whether verdict of the It is was sustained. jury duty to determine jury matters, those there was certainly some testimony them. offered The govern Judge was satisfied with the conclusion of the thereon. There was jury not entire ab- in the proof sence of delay delivery the telegram was the cause of proximate plaintiff sustained. injury actual included damages Whether were verdict know, request do not as no made we was the de- for the fendant items of the Nor separation recovery. do hold that was in error in we that Judge holding an entire absence of testimony there estab- tending misconduct, wilful or such a state lish wanton negligence, defendant as would a re- permit frame mind'of damages. for exemplary testimony satisfied covery under this point; lastly, on this we ground, Judge the Circuit error in Judge hold that declin- cannot inference could be drawn as a matter one only that ing law.
Opinion the Court. It is from prevented seeing certain plaintiff death, that if been shown son in had his Evans, left him it written Mr. he have as was could at 8.15 o’clock and reached Saturday Orleans evening New And time his child on night. to see Sunday Edgefield for a not defendant’s motion Elonor did err refusing his that if the trial of the defendant allegations new true he could have message, had received child dead carried reached before burial. It was manifest from to Beaufort for that place desired of the telegram the language with all speed. reach Edgefield *18 concerned, far so as defendant It is not necessary, reach travel railroad to Edge- should that he reach Edgefield could field, necessary only or the public the railroad highway. travel on is overruled. exception is, that the judgment of this Court
The judgment affirmed. be Circuit Court dissent. and Woods
Messrs. Justices Jones careful con 12, After Curiam. Per December herein, and it was made the petition sideration ma of the Court to the satisfaction appear or fact was disregarded either law 10 terial question ordered, dis overlooked, it is petition heretofore granted staying that the order missed revoked. remittur be