Hughes v. Western Union Tel. Co

• Decision Date: 31 October 1905
• Citation: 72 S.C. 516,52 S.E. 107
• Parties: HUGHES . v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

52 S.E. 107

72 S.C. 516

HUGHES .

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina.

Oct. 31, 1905.

1. Telegram—Delay in Delivery—Damages.

Where a telegram announcing the death of a relative was delivered too late for the recipient to attend the funeral because of delay of the company, it does not confer a cause of action because he was deprived of the consolation of attending such burial; but if the telegram shows a probability that he would have arrived in time, and would have gone if the message had been promptly delivered, the company is liable for the pain caused by being deprived of such privilege.

[Ed. Note.—For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, § 70.]

2. Same.

Delay in delivering telegram announcing death of a relative, where it appears that there was a probability that the recipient would have arrived in time to attend the funeral but for the delay, and that he would have gone, renders the company liable for anxiety caused by such delay, though as a matter of fact the funeral had been fixed at a time at which the recipient could not have arrived, where he had no notice of such time.

[Ed. Note.—For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, § 70.]

3. Same—Measure of Damages—Lex Fori.

The measure of damages for delay in delivering a telegram to a person in the state is not governed by the laws of the foreign state from which it is sent.

Appeal from Common Pleas Circuit Court of Lancaster County; Watts, Judge.

Action by W. Alonzo Hughes against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The sixth, seventh, eighth, and ninth paragraphs of the complaint are as follows:

"(6) That if said message had been promptly transmitted and delivered to plaintiff by defendant, as it was its duty to do, plaintiff could have wired to his family at Coleman when he would arrive there, and could have left on an afternoon train on December 18, 1903, and arrived at Coleman at 2:45 p. m., on December 19, 1903, in plenty of time to have attended the funeral of his said dead brother, which consolation said delay in delivering said telegram deprived him of. That on receipt of said telegram, as before stated, plaintiff immediately sent a telegram to his said sister, at Coleman, but same was not received by her until after plaintiff's brother had been buried.

"(7) That after receiving said delayed message by him, as aforesaid, plaintiff left on the earliest train for Coleman, Fla., leaving Heath Springs, which was not until about 11 a. m. on Sunday, 20th December, 1903, and by traveling the quickest and shortest route he did not reach Coleman, Fla., until the afternoon of December 21, 1903, two days after the plaintiff's brother had been buried, to his great mental pain, distress, and anguish.

"(8) That by reason of defendant's willful, wanton, and gross negligence in not transmitting and delivering promptly said message, plaintiff, on arriving at the nearest railroad station to the place where his dead brother's family resided, was not met with a conveyance by any member of his said brother's family and his own family, as would have been the case had said message been promptly delivered, and in consequence thereof had to walk a distance of one mile and one-half through deep sand, which very much fatigued and discommoded plaintiff, especially after his long and tedious trip by rail from Heath Springs to said railroad station.

"(9) That by reason of this wanton, willful, and gross negligence of defendant in failing to promptly transmit and deliver the said message, as aforesaid, the plaintiff was not only fatigued and jaded by his said walk through the deep sand, as stated above, but he was caused great mental anguish, pain, and suffering not to have had the privilege of seeing his dead brother's face for the last time, and of being with the family before the burial, and of attending the burial, all to his damage in the sum of $1,990."

The fourth request of the defendant, and modification, is:

" '(4) The court charges you that if it appears from the testimony in this case that, even if the message in question had been promptly delivered to the plaintiff, and the plaintiff by going the shortest and quickest route and using all possible diligence could not have reached and have been with his family before the burial, could not have seen his brother's face before the burial, and could not have arrived in time to have attended the burial, then the plaintiff cannot recover compensatory damages for any mental anguish caused by his not being able to attend the funeral, ' etc. I charge you that in this connection, if you believe that was the facts of the case, or if you believe that the plaintiff here didn't intend to telegraph or didn't telegraph, and if he had telegraphed, if you believe they wouldn't have waited, then I charge you that as good law."

From judgment for plaintiff, defendant appeals on the following exceptions:

"(1) Because his honor, the circuit judge, erred in refusing to charge the defendant's third request to charge, the same being as follows, to wit: 'Sections 8 and 9 of the complaint set out the injury and damage plaintiff claims to have suffered as follows: [Here read the eighth and ninth sections of the complaint.] The court charges you that, before the plaintiff is entitled to recover for mental anguish, he must show (1) not only that the defendant telegraph company did not exercise reasonable diligence or ordinary care in delivering the message, but (2) that, had it been delivered without the unreasonable delay alleged, the plaintiff, after receiving it, by the exercise of reasonable diligence, could have seen his dead brother's face, and have been with the family before the burial, and could have attended the burial of his deceased brother, and that he not only could have done so, but that he would have done so.' Error consisting in that the said request contained a correct statement of the law applicable to the facts in issue.

"(2) Because his honor, the circuit judge, erred in refusing to charge the jury defendant's sixth request to charge, the same being as follows, to wit:.'The court further charges you, as a matter of law, that the plaintiff can only recover as compensatory damages for such consequences as were within the contemplation of the parties to the contract at the time of the sending of the telegram; that is to say, for such consequences as naturally and reasonably flow from a breach of the contract or from negligence in performing any duty imposed by the contract. The court, therefore, charges you that the telegram constituting the written contract out of which this action arose is not sufficient to put within the contemplation of the defendant telegraph company the possibility of a postponement of a funeral or burial. The telegram is the simple announcement of death. The plaintiff, therefore, is not entitled to recover damages in the way of compensation for mental anguish on account of not being able to see his dead brother and attend his burial, as alleged, on the ground alone that if he had received the said message promptly he could have had the funeral postponed.' Error consisting in that the said request embodied a correct statement of the law applicable to the facts in issue in said cause.

"(3) Because his honor, the circuit judge, erred in refusing to charge defendant's seventh request to charge, the same being as follows, to wit: 'That the question of what compensatory damages, if any, plaintiff is entitled to recover, that is to say, the measure of damages, is governed in this case by the law of the state of Florida, where the contract for sending the message involved was made. Under the law of Florida, any mental anguish which does not accompany or proceed from a physical injury, as a consequence of such physical injury, is not an element of damage, and cannot be recovered on account of a breach of contract or negligence. I therefore charge you that the plaintiff is not entitled to recover compensatory damages in this case for the mental anguish he claims to have suffered in not seeing his dead brother and attending the funeral, as alleged, due to any breach of contract by the telegraph company, or negligence in transmitting and delivering the telegram involved.' Error consisting In that the said request embodied a correct statement of the law applicable to the facts in issue."

Geo. H. Fearons, Willcox & Willcox, and J. H. Marion, for appellant.

R. E. Wylie, for respondent.

GARY, A. J. This is an action for damages arising out of the alleged negligence and willfulness of the defendant in failing to deliver a telegram addressed to the plaintiff, announcing the death of his brother. At 12:30 p. m., on the 18th of December, 1903, the sister of the plaintiff filed with the defendant at Coleman, Fla., the following message, addressed to Alonzo Hughes, Heath Springs, S. C.: "John killed at Panasoffkee at mill this morning. [Signed] Dora Hughes." It is alleged that the message was not delivered to the plaintiff until 2 o'clock p. m. on the 19th of December, 1903, although it was received by the defendant at its office in Heath Springs at 8 o'clock a. m. on the 19th of December, 1903. Some time during the afternoon of the 19th of December the plaintiff sent the following telegram to his sister at Coleman, Fla.: "Telegram received at 2 p. m. Will come if possible. [Signed] Alonzo." The sixth, seventh, eighth, and ninth paragraphs of the complaint will be set out in the report of the case; also, the defendant's fourth request to charge, together with the modification thereof by his honor, the presiding judge; also the appellant's exceptions. The jury rendered a verdict In favor of the plaintiff for $700. In considering the exceptions, we will refer to them by their numbers.

1. First and second exceptions: Section 2223 of the Code of Laws of 1902 is as follows: "All telegraph...