Bosh v. Western Union Tel. Co

• Decision Date: 29 November 1905
• Citation: 53 S.E. 175,73 S. C. 218
• Parties: DU BOSH. v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

53 S.E. 175

(73 S. C. 218)

DU BOSH.

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina.

Nov. 29, 1905.

On Rehearings, Jan. 31.

Telegraphs — Delay in Delivery —Damages.

Plaintiff sued to recover for failure to deliver the message: "My wife dead. Burial five o'clock Sunday, Cypress Church. Phone Walter to prepare grave." There was evidence of delay for about 40 hours. Held, that plaintiff could not recover for expense in sending a messenger to hurry the preparations for the funeral because of the hot weather, when no money was paid therefor, nor because of the absence of friends and relatives from the funeral; there being nothing in the message bringing to the company's notice that they were to be informed.

[Ed. Note.—For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, § 65.]

Appeal from Common Pleas Circuit Court of Florence County.

Action by W. B. Du Bose against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed.

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

T. P. Kershaw, S. W. G. Shipp, and Gattelly & Ragsdale, for respondent

JONES, J. The plaintiff in this case sought to recover damages for negligent and wanton failure to promptly deliver the following telegram: "August 20, 1904. To P. B. McLendon, Lamar, S. C: My wife dead. Burial five o'clock Sunday, Cypress Church. Phone Walter to prepare grave. W. B. Du Bose." The message was delivered to defendant's operator at Timmonsville, S. C, at 7:20 p. m., Saturday, August 20th, was transmitted to Sumter, S. C, relay office, at 7:35; but, notwithstanding repeated and frequent calls for Lamar by the Sumter office, it was not received at the Lamar office until Monday morning, the 22d of August, and was not delivered to the addressee until after the burial, which was had at Cypress Church, on Sunday, August 21st, at probably about 5 o'clock p. m. In the meantime, not knowing that the message had not been delivered, the plaintiff, on Sunday morning, on account of the condition of the corpse and the hot weather, decided to have theburial at 2 o'clock p. m. instead of 5 p. m., and accordingly sent a messenger across country from Timmonsville to arrange for the funeral at said earlier hour. This messenger arrived at the home of Walter Du Bose, a brother of plaintiff, and referred to in the message as "Walter, " at about 1 o'clock Sunday, and then for the first time Walter Du Bose was informed of the death of plaintiff's wife, and immediately set about to prepare the grave. The funeral party with the corpse arrived at Cypress Church at about 3 o'clock p. m., but the grave was not then prepared. Finally, after some funeral services in the church and the grave being ready, the burial took place. There was some conflict in the testimony as to when the burial actually took place, whether between 3 and 4 o'clock, or whether about 5 o'clock. Two witnesses for the plaintiff testified that the time was "about 5 o'clock, " and one witness for the defendant testified that it was "nearly 5 o'clock"; some others thought It was earlier. Some 35 or 40 persons were present at the funeral.

The elements of damages alleged in the complaint as the result of defendant's alleged negligent and wanton conduct were: (1) The expense of sending the messenger by private conveyance a distance of 15 miles to Cypress Church; (2) mental anguish because of the inability, for want of time, to make suitable preparation for the reception and burial of his dead; (3) mental anguish because of the deprivation of the comfort and consolation of the presence of many of the friends and relatives of his deceased wife and himself at her said burial. At the close of plaintiff's testimony, defendant moved for a nonsuit on practically two grounds: (1) That there was no evidence tending to show either negligence or willfulness; (2) that there was no evidence tending to show that the injury or mental anguish alleged was the natural and proximate result of the negligence or misconduct alleged. This motion was refused, and the trial resulted in a verdict for $500 in favor of plaintiff. Whereupon defendants moved for a new trial, on grounds not stated in the record; and this motion was also refused. The exceptions are to the refusal of the nonsuit and the new trial, and raise practically the questions submitted in the motion for nonsuit,...