Harmon v. Western Union Tel. Co

• Decision Date: 30 March 1903
• Citation: 43 S.E. 959,65 S. C. 490
• Parties: HARMON. v. WESTERN UNION TEL. CO.
• Court: South Carolina Supreme Court

43 S.E. 959

65 S. C. 490

HARMON.

v.WESTERN UNION TEL. CO.

Supreme Court of South Carolina.

March 30, 1903.

TELEGRAM—FAILURE TO DELIVER—DAMAGES —NONSUIT—EVIDENCE.

1. Failure to deliver telegram to come and contract for building houses is too uncertain on which to base an action for damages.

2. Where a nonsuit is granted, exclusion of evidence which would not have affected the nonsuit is harmless error.

3. A ruling that complaint does not state a cause of action is harmless error where there was no evidence to sustain it.

4. Where exemplary damages are sought, and there was no allegation in the complaint of willfulness, and no proof thereof, a nonsuit was properly granted.

Appeal from Common Pleas Circuit Court of Lexington County; Buchanan, Judge.

Action by Killian Harmon against the Western Union Telegraph Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Muller & Sturkie, for appellant.

Smythe, Lee & Frost, for respondent

WOODS, J. The plaintiff sought by this action to recover damages because of the failure of defendant to deliver to him the following telegram, received by it for transmission: "Perry, S. C, 12—5—1899. Killian Harmon, Batesburg, S. C: Can you come here immediately build two or more houses by contract. Answer. J. C. Fort" The plaintiff offered evidence tending to show that when the telegram was received at Batesburg he was not there, and the defendant's agent informed the sender of telegram by wire of his absence in Columbia, but did not deliver the message at the residence of plaintiff, which was within its free-delivery limits. Plaintiff offered to prove further that he had left instructions with his wife to forward business communications of this character, but the evidence was excluded. Fort, preferring plaintiff to do the work because of his lower charge, went to Columbia to see him, but, learning he was no longer there, contracted with another party to build the houses. At the conclusion of plaintiff's evidence, the circuit judge, upon motion, ordered a nonsuit, and plaintiff appeals.

We think the proof was entirely inadequate to sustain the action. Sitton v. Macdonald, 25 S. C. 68, 60 Am. Rep. 484; Moorer v. Andrews, 39 S. C. 430, 17 S. E. 948; 8 Am. & Eng. Ency. (2d Ed.) 620; Shearman & Red-field on Negligence, § 745. The telegram itself was merely an invitation to come and contract for houses, and whether the terms would have been agreed on and the contract made was altogether conjectural. Whether any damage would result depended on this contingency, which was too uncertain to be made the basis of the judgment of a court In addition to this, there is no evidence whatever of what the value of the contract for building the houses would have been to plaintiff if it had been made. The case is,...