Hellams v. Western Union Tel. Co.

• Decision Date: 08 November 1904
• Citation: 49 S.E. 12,70 S.C. 83
• Parties: HELLAMS v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

49 S.E. 12

70 S.C. 83

HELLAMS v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

November 8, 1904

Appeal from Common Pleas Circuit Court of Charleston County Aldrich, Judge.

Action by J. E. Hellams against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed.

Smythe Lee & Frost and Geo. E. Fearons, for appellant. Mordecai & Gadsden, for respondent.

JONES J.

This action was brought to recover damages for the alleged wanton willful, and grossly negligent conduct of the defendant in failing to seasonably deliver the following message: "Greenville, S. C., Feb. 11, '02. J. E. Hellams, Sullivan's Island, S. C., Charleston, S. C.: Come at once your mother low, not expected to live. D. F. Batson, Jr." The jury rendered a verdict for $500, and from the judgment thereon the defendant company appeals upon exceptions raising the questions which we now consider.

1. There was no error in refusing the motion for nonsuit. The motion was made on the ground that there was no evidence that the particular contract set out in the complaint was made with defendant. The complaint, in the second paragraph alleged that on the 11th day of February, 1902, one D. F. Batson, Jr., at Greenville, S. C., within the usual hours of business, in the office of said company, in person presented and filed with the defendant the message set out above; and in the third paragraph the complaint alleges "that the defendant at the said time and place received said message, and there and then promised promptly to transmit the same by telegraph and deliver the same to said J. E. Hellams, the plaintiff herein, the addressee of the said message, as aforesaid, at his said address on Sullivan's Island, Charleston, S. C., as the said address is so particularly set out in said telegraphic message, and that the said D. F. Batson, Jr., then and there, in consideration of said promise, did pay to the defendant's agent at said office the sum of twenty-five cents for the transmission and delivery of said message to Charleston, S. C., and the further sum of fifty cents then and there expressly agreed as the consideration for the further transmission thereof to Sullivan's Island, S. C., and delivery to the plaintiff." The answer admitted the second paragraph of the complaint, and, with respect to the third paragraph, admitted so much thereof as alleges the receipt of the said message by the defendant, and the prepayment by the plaintiff of the sums therein mentioned, but denied the remainder of the said paragraph. There was testimony that J. E. Hellams, the plaintiff, was at the time residing at Sullivan's Island, was working there as a carpenter under Mr. Pettyjohn, and kept a boarding house near Atlantic Beach Hotel. The message was received at the Charleston office at 6:05 p. m. February 11th, and the schedule offered in evidence showed that two boats were due to leave Charleston for Mt. Pleasant and Sullivan's Island at 6:30 and 8:40 p. m. The ferry wharf was not exceeding a five or six minutes' walk from defendant's telegraph office. The plaintiff testified that the message was delivered to him by Mr. Pettyjohn at 1 o'clock February 12th --too late for plaintiff to take an earlier train from Charleston to Greenville than 11 p. m. of that day; that, had the message been delivered by 8 o'clock on night of the 11th, he could have reached Charleston and taken the 11 p. m. train of that day, and could have reached his mother a day earlier. During Wednesday, February 12th, plaintiff's mother was conscious; but on Thursday evening, when plaintiff reached her bedside, she was unconscious, and died a few hours thereafter, without recognizing him. Plaintiff testified that he thereby suffered mental anguish. The receipt of the message of such tenor by the defendant, with notice that the addressee's residence was Sullivan's Island, and the receipt of 50 cents beyond the usual fee for transmission of said message to the Charleston office, and the actual delivery of the message to the plaintiff on Sullivan's Island, was surely some evidence of a contract to deliver the message with reasonable promptness at Sullivan's Island. At the time of the motion for nonsuit, no explanation had been made of the failure to deliver the message on the night of the 11th. Nonsuit was properly refused, as proof of delay in...