Brown v. Western Union Telegraph Co.

• Decision Date: 28 August 1912
• Citation: 75 S.E. 542,92 S.C. 354
• Parties: BROWN et ux. v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

75 S.E. 542

92 S.C. 354

BROWN et ux. v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

August 28, 1912

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

Action by William Brown and wife against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

The following are the exceptions of defendant:

"(1) That his honor, the presiding judge, erred in overruling defendant's objection to and admitting the following testimony: 'Q. When you got to Summerville, what did you find? A. She was dead and buried. Q. Was that or not the first time you knew she was dead? A. Yes, sir; that was the first time. Q. When was it you came to Summerville --how long after the burial? A. The second day. She died on the 22d, and I got the letter on the 24th. She died Wednesday, and I got the letter on Friday. Q. Then you came? A. Yes, sir. Q. Rosa, when did you get this letter? A. On the 24th. Q. When you got that letter, what did you do? A. I began to pack my trunk. Q. To come on? A. Yes sir. Q. Did you come immediately in response to that letter? A. Yes, sir. Q. What was the date of the letter? A. That letter was dated 22d, and I got it on the 24th. Q. When you got to Summerville, when did you first hear of the death of your sister? A. I did not hear until I got home in the house.' Whereas it is respectfully submitted that the said testimony was immaterial and irrelevant, as defendant was only liable in damages, if liable at all, for mental anguish caused to the plaintiff by being deprived of seeing her dead sister and of attending her funeral and burial, and the defendant could not be held liable for any mental anguish of the plaintiff, caused by the death of her sister and knowledge thereof, and that where, how, and when she acquired such knowledge is irrelevant and immaterial, and is entirely apart and disconnected from the message that was sent, the failure to deliver which prevented her being present at her sister's funeral and seeing her dead body, and for which alone she could be entitled to recover damages; that this result could not have been contemplated from the wording of the message, and no notice thereof to the company was given.

"(2) Because the court erred in not granting defendant's motion for a nonsuit at the close of the plaintiff's case, on the ground that there was not only no allegation in the complaint, but no testimony whatsoever, that plaintiff paid or promised to pay for the transmission of the message, or that the sender paid or promised to pay therefor, or that there was any consideration to the defendant.

"(3) Because the court below erred in refusing to grant the defendant's motion for a nonsuit, made at the close of the plaintiff's case, as to the cause of action based on negligent tort (only), on the ground that it affirmatively appeared from the plaintiff's own case that the message sued on was an interstate message, and that it did not appear that there was any default or breach of duty with regard thereto on the part of the defendant within the territorial limits of the state of South Carolina; and the defendant maintains that the statute entitled 'An act to allow damages against telegraph companies doing business in this state for mental anguish or suffering even in the absence of bodily injury caused by negligence in receiving, transmitting and delivering messages,' approved February, 1901 (Stat. S.C. vol. 23, p. 748), which act is the foundation of the cause of action based on negligent tort, is, if construed as applicable to the message in this case, unconstitutional and void, because in contravention of the federal Constitution, to wit: (a) Article 1, § 8, subd. 3, of the Constitution of the United States, conferring on Congress power to regulate commerce among the several states, and (b) article 1, § 8, subd. 17, of the Constitution of the United States, conferring power on Congress to exercise exclusive legislation in all cases whatsoever over the District of Columbia, and (c) that part of the fourteenth amendment to the Constitution of the United States which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.

"(4) That the court below erred in refusing the defendant's motion for a nonsuit or a direction of verdict in its favor, at the close of the whole case, as to the cause of action based on negligent tort (only), on the grounds set out in defendant's motion for a nonsuit at the close of the plaintiff's case, and on the additional ground that it then affirmatively appeared that there was no default or negligence within the state of South Carolina, and that whatever default or negligence there was on the part of the defendant occurred without the state of South Carolina and within the District of Columbia; and therefore, as the message sued on was an interstate message, the defendant maintains that the statute entitled 'An act to allow damages against telegraph companies doing business in this state for mental anguish or suffering even in the absence of bodily injury caused by negligence in receiving, transmitting and delivering messages,' approved February 20, 1901 (Stat. S.C. vol. 23, p. 748), which act is the foundation of the cause of action based on negligent tort, is, if construed as applicable to the message in this case, unconstitutional and void, in contravention of three parts of the federal Constitution, to wit: (a) Article 1, § 8, subd. 3, of the Constitution of the United States, conferring on Congress power to regulate commerce among the several states, and (b) article 1, § 8, subd. 17, of the Constitution of the United States, conferring power on Congress to exercise exclusive legislation in all cases whatsoever over the District of Columbia, and (c) that part of the fourteenth amendment to the Constitution of the United States which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws.

"(5) That his honor, the presiding judge, erred in refusing to charge the eleventh request of the defendant, which was as follows: 'That the measure of damages is governed in this case by the law of the District of Columbia, where the tort was committed; and under the law of that state any mental anguish which does not proceed from or accompany...