Graham v. Western Union Tel. Co.

• Decision Date: 18 November 1912
• Citation: 76 S.E. 200,93 S.C. 173
• Parties: GRAHAM v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

76 S.E. 200

93 S.C. 173

GRAHAM v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

November 18, 1912

Appeal from Common Pleas Circuit Court of Spartanburg County; Robt. Aldrich, Judge.

"To be officially reported."

Action by Dorcas H. Graham against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. H Fearons, of New York City, and John Gary Evans, of Spartanburg, for appellant. Otts & Dobson, of Spartanburg for respondent.

HYDRICK J.

This is an appeal from a judgment for $500 damages awarded plaintiff for mental anguish, resulting from the failure of defendant to promptly deliver a telegram sent by her from Greers, S C., to her son, John Graham, at Gaffney, S. C., on August 3 1909, which read: "John, come at once. Jennie is very bad. [Signed] Mother." On the lower left-hand corner of the telegram plaintiff's name and address were written as follows: "Mrs. D. H. Graham, Greer, S. C."

Plaintiff alleged and introduced evidence to prove that the message was sent for her benefit; that nothing was heard from it until late in the evening of August 5th, when she received a service message stating that it had not been delivered because her son had gone to Spartanburg, S. C.; that her son had not gone to Spartanburg, but was in Gaffney, and would have come to her assistance at once upon receipt of the telegram. The fifth and sixth paragraphs of the complaint allege, in substance, that during all these hours plaintiff's daughter was at the point of death, and plaintiff suffered mental anguish for want of the assistance and comfort which the presence of her son would have afforded her, and that her suffering was greatly increased when she was informed that her son had gone to Spartanburg, because she did not know where to reach him by telegram or letter. Defendant moved to strike out the allegations of the fifth and sixth paragraphs of the complaint, on the ground that the telegram showed on its face that it was sent for the benefit of plaintiff's daughter Jennie, and there was no notice to defendant that the presence of her son was desired for the benefit of plaintiff. The motion was properly refused. Even under the law as it stood prior to the act of 1909 (26 Stat. 84) the message itself afforded sufficient notice to defendant of the damages which plaintiff would suffer by reason of its failure to deliver it. Lyles v. Telegraph Co., 77 S.C. 174, 57 S.E. 725, 12 L. R. A. (N. S.) 534. But under the act above referred to plaintiff had the right to recover for such damages without giving notice thereof. Stewart v. Telegraph Co., 76 S.E. 111, filed Nov. 1, 1912;...