Glover v. Western Union Tel. Co.

• Decision Date: 28 November 1907
• Citation: 59 S.E. 526,78 S.C. 502
• Parties: GLOVER v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

59 S.E. 526

78 S.C. 502

GLOVER v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

November 28, 1907

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

Action by P. B. Glover against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. H Barrett and Davis, Gunter & Gyles, for appellant.

Hendersons for respondent.

JONES J.

Plaintiff brought this action for damages, actual and punitive, for mental anguish caused by the failure of defendant to promptly deliver a telegram filed at its Atlanta office on the morning of March 27, 1904, announcing to plaintiff the critical illness of his son in Atlanta, Ga. Defendant in its answer alleged that the telegram was transmitted to Aiken, S. C., as speedily as possible under the existing conditions that day; that the message was delivered promptly at plaintiff's place of business, the Aiken Bottling Works, and was receipted for there by the partner of plaintiff, one Royal; that, the delivery sheet being signed "P. B. Glover," defendant's Aiken manager did not know until some time afterwards that the telegram had not been actually received by Mr. Glover himself, as the signature on the delivery sheet indicated; that such delivery was proper and legal; and that, if there was any negligence, it was on the part of Royal in failing to promptly deliver to Glover the said message. The trial resulted in a verdict and judgment thereon in favor of plaintiff in the sum of $500, from which defendant appeals.

The message was filed at defendant's Atlanta office on March 27th between 9:30 and 10 o'clock a. m. central time, according to testimony for plaintiff, and at 11 o'clock a. m. central time, according to testimony for defendant, and was transmitted to Aiken, S. C., through the Augusta relay office, reaching Aiken at 2:25 p. m. When the message was delivered to the messenger boy, he at 3:10 the same afternoon carried it to the store of Mr. Wesley Royal, who receipted for it in the name of "P. B. Glover." Royal delivered the message to plaintiff a few minutes before 8 o'clock next morning, March 28th. Plaintiff reached the bedside of his son in the hospital at Atlanta that night about 9 o'clock. Plaintiff's son in a few weeks recovered from his illness.

The first exception is to the refusal to grant a new trial. The record does not disclose on what ground the motion for a new trial was made, and therefore this exception cannot be considered. Pearlstine v. Insurance Company, 70 S.C. 75, 49 S.E. 4.

The second exception assigns error in some remarks made by the court in the presence of the jury while ruling as to the admissibility of testimony. During the examination in chief he was asked this question by his counsel: "When you opened the telegram, did that or not cause you mental pain and anguish? A. It certainly did. There are no words to express my feelings. Mr. Barrett: We object to that. The knowledge that his son was sick caused him anxiety, but the telegram company did not make him sick, and he is not suing us for transmitting the telegram giving the information which caused him anxiety. It was Providence made him sick, not the telegraph company. The Court: The telegraph company is liable, not for Mr. Glover's mental anxiety over the illness of his son, but for the failure of the telegraph company to give him sufficient notice to put himself in a position to minister to the sick son, and that is the thing that caused him the anxiety, and that is the thing that would make the telegraph company liable. You can direct your questions to that point." It is objected that the court in stating that "the telegraph company is liable" expressed an opinion on the facts. This is not a charge on the facts in violation of the Constitution, but merely a remark made by the court during the progress of the trial. State v. March-banks, 61 S.C. 17, 39 S.E. 187, and cases cited; State v. Thrailkill, 71 S.C. 143, 50 S.E. 551; Tinsley v. Telegraph Co., 72 S.C. 352, 51 S.E. 913; Willis v. Telegraph Co., 73 S.C. 379, 53 S.E. 639. It is further objected that the Court erred in stating that the defendant was liable "for the failure of the telegraph company to give him sufficient notice to put himself in a position to minister to the sick son"; the error being that the complaint did not allege that the father could have ministered to his sick son, or that he was worried by not being able to minister to him. We think the statement of the issue by the court was fairly within the meaning of the allegations in the complaint "that, when said telegram was received on March 28th, it was impossible for this plaintiff to reach his said dangerously ill son until late on the night of March 28th." The whole context shows that the court merely meant to limit plaintiff's proof to such mental anguish as resulted from defendant's negligence.

The third exception assigns error in not excluding testimony of Wesley Royal on cross-examination as to what the messenger boy said to him as to the contents of the telegram. Royal testified that, when he asked the messenger boy if the telegram was about machinery, the boy said he thought it was. It is contended that the ruling was erroneous, because it was not proven that the telegraph messenger had any authority to state the contents of a telegram, but that, on the contrary it was shown he had no such authority, and that he is not supposed to know the contents of a telegram. The testimony was admissible not to show the contents of a telegram by the declarations of the messenger boy, but because the declaration accompanied the act of delivery to Royal, and tended to explain it. The messenger boy being authorized to deliver the message, whether the act of delivery to Royal was proper, or negligent, or in willful disregard of duty, was a litigated matter, and accompanying declarations were admissible as a part of the res gestae. Crawford v. Railroad Co., 56 S.C. 145, 34 S.E. 80. The defendant requ...