Arial v. Western Union Tel. Co.

• Decision Date: 07 February 1905
• Citation: 50 S.E. 6,70 S.C. 418
• Parties: ARIAL v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

50 S.E. 6

70 S.C. 418

ARIAL v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

February 7, 1905

Appeal from Common Pleas Circuit Court of Greenville County; Purdy Judge.

Action by W. O. Arial against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed.

Geo. H Fearons and Evans & Finley, for appellant. Blythe & Blythe for respondent.

GARY A. J.

This is an action for damages alleged to have been sustained by the plaintiff in consequence of defendant's failure to deliver certain telegrams. The allegations of the complaint material to the questions presented by the exceptions are as follows:

"(2) That on the 13th day of January, 1903, the plaintiff sent through the defendant, at Piedmont, S. C. several messages to various parties, signed by himself; among them being two messages, one addressed to Rev. W. H. Arial, at Rock Hill, S. C., and the other addressed to Rev. J. W. Arial, at McColl, S. C., informing them that plaintiff's father was very ill, and requesting them to come at once to his bedside. The addressees of both of sad telegrams were brothers of plaintiff's father. Both of said telegrams were promptly delivered by the defendant to the parties addressed.

(3) That on the 13th day of January, 1903, the said Rev. W. H. Arial delivered to the defendant, at its office at Rock Hill, S. C., the following message, addressed to plaintiff, at Piedmont, S. C., signed by himself: 'How is your father? Must I come? Can't come until to-morrow.' That on the said 13th day of January, 1903, Rev. J. W. Arial delivered to the defendant, at its office at McColl, S. C., the following message, addressed to plaintiff at Piedmont, S. C., signed by himself: 'So sorry can't come. Will write.' Both of said messages were in response to the telegrams sent by plaintiff, as alleged in paragraph 2 of the complaint.

(4) That the defendant was fully apprised of the importance of the said messages, and the annoyance, anxiety, and mental anguish that would result to the plaintiff if said messages were not promptly delivered, received the same with knowledge of their importance, and promised promptly to transmit by telegraph and promptly deliver the same to the said W. O. Arial, at his residence in Piedmont, S. C.; and the said Rev. W. H. Arial and the said Rev. J. W. Arial, in consideration thereof, on said date, the former at Rock Hill, S. C., and the latter at McColl, S. C., each paid in advance to the defendant its regular charges on the telegram sent by him.

(5) That although the said W. O. Arial was at his residence, within the corporate limits of the said town of Piedmont, and within the delivery limits of the defendant in said town, and within one-fourth of a mile from the office of the defendant, during the whole of the said 13th and 14th of January, except at such times as he was at the depot in which defendant's office was located, and although said defendant could have easily delivered said telegrams to plaintiff, the said defendant negligently, recklessly, willfully, and with wanton disregard of the rights of the plaintiff failed in its duty to deliver said telegrams to plaintiff, and neither of said telegrams have ever yet been delivered to him; that in the meantime, to wit, on the 14th day of January, 1903, in the afternoon of said day, plaintiff's father died.

(6) That by reason of the negligent, reckless, willful, and wanton failure of the defendant to deliver said messages to plaintiff as aforesaid, plaintiff was left in uncertainty as to whether his uncles, or either of them, were coming, was compelled to leave the bedside of his dying father and meet all incoming trains, and was actually at the depot when his father died; that by reason of each and all of the foregoing facts plaintiff was subjected to and suffered great mental worry, anxiety, humiliation, and anguish--all to his damage in the sum of $1,000."

The defendant made a motion to strike out certain allegations of the complaint. The motion was granted as to some, but refused as to others. The jury rendered a verdict in favor of the plaintiff for $500.

The first and second assignments of error are as follows:

"(1) In that the circuit judge erred in refusing to strike out the allegation in paragraph 6 of the complaint that the 'plaintiff was left in uncertainty as to whether his uncles, or either of them, were coming'; the error being that the same is irrelevant, and does not state any element of damage contemplated by the statute, the same being remote, speculative, and not the proximate result of any act of defendant.

(2) In that the circuit judge erred in refusing to strike out the allegation in paragraph 6 of the complaint 'that the plaintiff was compelled to leave the bedside of his dying father, and meet all incoming trains, and was actually at the depot when his father died'; the error being that the same is irrelevant, the act related being a voluntary one on the part of plaintiff, for which the defendant could

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