Key v. Western Union Tel. Co

• Decision Date: 14 March 1907
• Citation: 56 S.E. 962,76 S.C. 301
• Parties: KEY. v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

76 S.C. 301

56 S.E. 962

KEY.

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina.

March 14, 1907.

1. Telegraphs—Failure to Deliver—Damages.

In an action for failure to deliver a message, exposure and hardship of plaintiff, caused by walking eight miles, not being in the contemplation of the contracting parties, and not to be anticipated by defendant, should not be considered in assessing damages.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, §§ 64-747]

2. Same—Punitive Damages.

Where a message was received out of office hours in a small town, where the agent was both railroad and telegraph agent, and could not go himself to deliver it, and the addressee was unknown, but after some delay was located by telephone, and a message was sent over the telephone to the assistant superintendent, who promised to deliver it, but did not, punitive damages should not be awarded.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 71.]

Appeal from Common Pleas Circuit Court of York County; Hydrick, Judge.

Action by J. R. Key against the Western Union Telegraph Company. Judgment for plaintiff. Defendant appeals. Reversed.

Geo. H. Feaons, Evans & Finley, and J. H. Marion, for appellant.

Wilson & Wilson, for respondent.

WOODS, J. This action was brought by the plaintiff to recover damages for alleged willful, wanton, and gross negligence of the defendant for delay in delivery of the following telegram received at its office in the town of Kershaw, S. C, on the 20th of April, 1904, directed to J. R. Key, Ft. Mill, S. C: "Come at once, your wife is very low." The message was filed at 8:32 a. m., and transmitted to Ft. Mill In eight minutes thereafter. The Ft Mill office was a joint telegraph and railway office; the telegraph agent being also agent for the railroad and express companies. Except from 8:30 a. m. to 9:10 a. m., and during such other hours as local freight trains were at the station, when it was necessary for the agent to perform his railway and express duties, the telegraph office was open from 8 o'clock a. m. until 8 p. m. The business of the office was small, the receipts being $10 to $15 a month, and there was no evidence tha*t the hours during which the office was open for business were not reasonable. The agent at Ft. Mill had never heard of Key, the addressee of the message; but Immediately upon receipt of the telegram, although during an hour when the telegraph office was not open for business, he made an unsuccessful effort to locate him. Afterwards, between 9 and 10 o'clock a. m., he found the plaintiff was an operative of the Millfort Mill, and at once telephoned the message to McGregor, the assistant superintendent of the mill, who said he knew Key and could deliver the message to him. If McGregor had promptly communicated the message to the plaintiff, this would have been the quickest method of delivery. The plaintiff, upon the receipt of the message from McGregor, which was between 12 and 1 o'clock, went Immediately to his boarding house, changed his clothes, and without making inquiry at the office at Ft. Mill, without attempting to hire conveyance, although he had the money and could have made the journey in about the same time over the public highway, and without ascertaining whether any trains could be had at Rock Hill, walked and trotted eight miles along the railroad track in the hope of catching a belated freight train to Kershaw. Upon arrival at Rock Hill, plaintiff found the freight train had passed, and that the next train for Kershaw left at 6:30 the next morning. Hence he had to spend the night. He testified to the mental anguish caused by the delay in reaching his sick wife; and that, as a result of the walk, he suffered great bodily discomfort, was made tired and stiff, and could hardly sleep that night or walk the next morning. He reached Kershaw about 10 o'clock on Thursday, and drove seven miles to his father-in-law's house, where he found his wife still conscious and rational. She died about 6 o'clock the following Sunday. Plaintiff attended the funeral, and stayed with his wife's people for one week after the burial. He testifies the discomfort caused by walking from Ft. Mill to Rock Hill was a large part of the suffering for which he was suing. A judgment for $500 was recovered. The defendant appealed.

1. The defendant's first position is that the physical pain and discomfort suffered by the plaintiff, in consequence of the hurried walk of eight miles, was not alleged in the complaint as an element of damage, and therefore the circuit judge erred when he instructed the jury to the contrary. On this point the allegation of the complaint is: "That by reason of defendant's willful, wanton, and gross negligence in failing to promptly transmit and deliver said message, as aforesaid, plaintiff was unable to leave Ft. Mill to go to his wife by railroad, on that day, which he could have done if said message had been delivered to him with due diligence, so that the plaintiff, in his earnest desire to go to his wife as quickly as possible, hurried through the country, on foot, to Rock Hill, a distance of some eight miles, but arrived there too late to catch the train going to Kershaw that day, and so had to remain there, at considerable expense and in great anguish of mind, until 6:30 a. m. of said date. He then had to go seven miles in the country to where his wife was residing with her father, and where he found her in a dying condition; she dying on the following Sunday. By all of which the plaintiff was subjected to great mental anguish and suffering,...