Anderson v. Western Union Tel. Co.&dagger

• Decision Date: 22 February 1910
• Citation: 67 S.E. 232,85 S.C. 252
• Court: South Carolina Supreme Court
• Parties: ANDERSON v. WESTERN UNION TELEGRAPH CO.&dagger

67 S.E. 232

85 S.C. 252

ANDERSON

v.WESTERN UNION TELEGRAPH CO.†

Supreme Court of South Carolina.

Feb. 22, 1910.

1. Negligence (§ 108^*)—Pleading—"Negligently" — "Carelessly" — "Gross and Reckless Negligence."

In pleading a cause of action based upon negligence, it is necessary to use words showing negligence; and the words "negligently" and "carelessly" are not irrelevant or redundant, but are wholly appropriate, and will not be stricken out; and the same rule applies to the words "gross_ and reckless negligence, " where a cause of action for punitive damages is alleged.

TEd. Note.—For other cases, see Negligence, Cent. Dig. §§ 174, 175, 179, 180; Dec. Dig. §

2. Pleading (§ 362*)—Failure to Ueliveh Message—Action—Motion to Strike.

Where a complaint in an action against a telegraph company for failure to deliver a message alleged an agreement between plaintiff and the sender for plaintiff's employment as a nurse, but failed to allege notice thereof to defendant when the message was delivered to its agent for transmission, the proper practice would have been a motion to strike out the allegation as to the contract.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1147-1155; Dec. Dig. § 362.*]

3. Pleading (§ 428*)—Objections to Com--plaint—Waiver—Evidence to Prove Irrelevant Allegations.

Defendant, having allowed such allegations to remain in the complaint, could not object to testimony tending to prove them.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1433-1436; Dec. Dig. § 428.*]

4. Appeai. and Error (§ 1051*)—Review-Admission of Evidence.

. Admission of evidence of an irrelevant allegation in the complaint over objection was not prejudicial, where testimony tending to prove the same allegation was introduced several times without objection.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4161-1170; Dec. Dig. § 1051.*]

5. Appeal and Error (§ 215*)—Review—Instruction Not Objected to in Lower Court.

Error in a charge stating what acts of negligence were charged in the complaint cannot be raised on appeal, where not called to the judge's attention at the trial.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. § 215.*]

6. Trial (§ 337*) — Verdict — Disregard of Instructions—Punitive Damages.

A verdict for punitive damages would be improper, where the court ruled that such damages were not recoverable.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 790; Dec. Dig. § 337.*]

7. Telegraphs and Telephones (§ 67*) — Failure to Deliver Message—Damages-Board.

In an action against a telegraph company for failure to deliver a message, there could be no recovery for plaintiff's board, where she testified that she was not compelled to pay board as a result of the failure to deliver the message.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Dec. Dig. § 67.*]

8. Appeal and Error, (§ 1140*) — Review — Excessive Verdict—New Trial Nisi.

Where a verdict awards damages on grounds not entitling plaintiff to damages, a new trial will be granted on reversal, unless such damages be remitted.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4462-4478; Dec. Dig. § 1140.*]

Appeal from Common Pleas Circuit Court of Charleston County; Geo. W. Gage, Judge.

Action by Mary J. Anderson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

The defendant's exceptions, referred to in the opinion, are as follows:

"(1) Because the circuit judge erred in declining to hear motion of defendant's attorney to strike out the words 'negligently and carelessly' in paragraphs 4 and 6, and the words 'gross and reckless negligence' in paragraph 7, and the words 'in consequence of defendant's gross carelessness and negligence' in paragraph 8, of the complaint. Said words having been irrelevant, the said defendant was prejudiced by the introduction of testimony to sustain them.

"(2) Because the circuit judge erred in allowing witness O'Neil to testify, over defendant's objection, to the effect that the plaintiff had been engaged by his wife; the said testimony having been hearsay and incompetent.

"(3) Because the circuit judge erred in not directing a verdict for the defendant; there being no testimony sufficient to sustain the allegations of the complaint, the wording of the telegram having conveyed no notice to the defendant of any contract between plaintiff and O'Neil, and there being no testimony of any other notice to defendant of the existence of such contract between plaintiff and the witness O'Neil.

"(4) Because the circuit judge erred in not directing a verdict; there being no testimony that the defendant had any notice of any alleged agreement or contract of employment between plaintiff and the witness O'Neil.

"(5) Because the circuit judge erred in not directing a verdict; the testimony of plaintiff's witness having shown that the damages, if any, suffered by plaintiff were too remote, consequential, and speculative.

"(6) Because the circuit judge erred in charging the jury: 'The exact thing which the plaintiff puts her hands upon and charges as negligence is that the telegram was not transmitted from Charleston to Walterboro within a reasonable time, and to determine that matter you must determine at what time the telegram was put into the office at Charleston. The witnesses differ about that. You have heard their testimony. You have heard the testimony of the gentleman whose name was signed to the telegram, Mr. O'Neil. You have heard the testimony of the operator in the office at Charleston, whose name I do not now recall. And you have to decide between those men. Was that telegram left in the office at Charleston between 1 and 2 o'clock on Saturday, or was it left there about 5 o'clock on Saturday? I charge you that if it was left there between 1 and 2 o'clock, and if not delivered in Walterboro until G or 7, it is a question for the jury to say whether or not that was a reasonable time. If you determine it was a reasonable time, that ends the case for the telegraph company; and if you decide that it was not reasonable time, then that convicts the telegraph company of what the law calls negligence. She puts her finger upon one other act of negligence—two acts of negligence: First, a failure to deliver, transmit in time; and, secondly, the change of the name of O'Neil to Anderson.' The complaint not having alleged any negligence in the transmission and delivery of said telegram, the defendant was prejudiced by such charge, and it was therefore error.

"(7) Because the circuit judge erred in not granting defendant's motion for a new trial; the verdict being excessive and unsupported by the testimony.

"(8) Because the circuit judge erred in not granting defendant's motion for a new trial; the jury having ignored the instructions of the court that no punitive damages could be awarded.

"(9) The jury having ignored the charge of the judge as to punitive damages, and disregarded the testimony as to actual loss alleged to have been sustained by plaintiff, it was error on the part of the circuit judge to refuse the motion for a new trial."

Peurifoy Bros, and Nelson, Nelson & Gettys, for appellant.

Howell & Gruber, for respondent.

GARY, A. J. This is an action for damages alleged to 'have been sustained by the plaintiff through the wrongful acts of the.defendant in failing to deliver a telegram. The allegations of the complaint material to the questions under consideration are as follows: "Tnat on September 10, 1904, one J. P. B O'Neil wrote a telegram directed to this plaintiff, in the care of J. F. Lucas, with whom this plaintiff was then liivng, at Walterboro, S. C, as follows: 'Charleston, S. C, 9, 10, 1904. Mrs. Mary J. Anderson, Care of J. F. Lucas, Walterboro, S. C. Can you come at once to confinement case? J. P. B. O'Neil.' That the defendant transmitted the said message, and delivered the same to this...