Lewis v. Western Union Tel. Co.

• Decision Date: 11 April 1900
• Parties: LEWIS v. WESTERN UNION TEL. CO.
• Court: South Carolina Supreme Court

35 S.E. 556

57 S.C. 325

LEWIS v. WESTERN UNION TEL. CO.

Supreme Court of South Carolina

April 11, 1900

Appeal from common pleas circuit court of Greenville county; D. A Townsend, Judge.

Action by R. E. Lewis against the Western Union Telegraph Company. From a judgment for defendant, plaintiff appeals. Affirmed.

B. A Morgan, for appellant.

Ansel Cothran & Cothran, for respondent.

POPE J.

The complaint, in its first three articles, alleges that defendant is a corporation in this state, with offices, as a telegraph company, in the cities of Greenville and Columbia. The rest of the complaint is as follows: "(4) That the father of the plaintiff resided in the city of Greenville, in said state, and, being dangerously ill, J. O. Lewis, a brother of the plaintiff, did on the morning of November 15 1897, deliver a message to the resident agent of the defendant at Greenville, in said state, to be transmitted and delivered to the plaintiff, at Columbia, S. C., and prepaid toll therefor; and the said message reading as follows 'R. E. Lewis, Columbia, S. C.: Come up to-day. Your father is ill. J. O. Lewis.' (5) That said message was received at the defendant's Columbia office by its resident agent at 10:30 o'clock on the morning of November 15, 1897. Said message was not delivered, nor was any information wired the Greenville office of its nondelivery, or that a better or more specific address was required; and the matter remained in that situation until November 17, 1897, when, plaintiff's father having grown more desperately ill, J. Maxwell Lewis, brother of plaintiff, delivered to the defendant's resident agent at Greenville, in said state, a message to be transmitted and delivered to the plaintiff at Columbia, in said state; said message, among other things, reading as follows: 'R. E. Lewis, Columbia, S. C.: Father not so well. You had better come. J. Maxwell Lewis.' (6) That this last-named message was received by the resident agent of the defendant at its Columbia office at 11:30 a. m., November 17, 1897, but was not delivered until after defendant had addressed a postal card to the plaintiff, and he received same at 7:30 p. m. of same date, and notified defendant's agent of his whereabouts by telephone message; and it was not until at this time that defendant's agent gave the plaintiff any information that a message of November 15, 1897, had been received, and was at said office for him. That the message of November 15, 1897, was not delivered by the defendant to the plaintiff even at the time of the delivery of the message of the 17th of November, 1897, but was sent to plaintiff, through the United States mails, to Greenville, S. C., subsequent to that date. (7) That while the father of plaintiff was desperately ill at the time of the dispatch of November 15, 1897, he was perfectly conscious, and able to recognize his family and friends, and remained so for forty-eight hours thereafter. (8) That, if the message of the 15th of November had been delivered within a reasonable time after its receipt at the said Columbia office, (9) That the plaintiff left the city for Greenville, S. C., upon the first train affording him passage between said points after the receipt of the message of November 17, 1897, and, notwithstanding he used every possible means to hasten his transit and to reach the beside of his dying father at the earliest possible moment, he did not do so until in the afternoon of November 18th, at which time his father was unable to recognize him, and within a few days thereafter departed this life without the knowledge of presence of the plaintiff, for whom he had continuously asked for two or three days before he became unconscious. (10) That by reason of defendant's willful, gross, and inexcusable neglect and carelessness in failing to deliver the first of said messages within a reasonable time after its receipt by its agent, and acting in such a wanton and indifferent manner, with disregard of its duties and the rights of the plaintiff, knowing full well the importance of the message, the plaintiff has suffered great and grievous mental and physical anguish, pain, grief, and sorrow, and been put to much extra and needless expense, all to his damage nineteen hundred and fifty dollars. ***" The answer of the defendant was a general denial. The cause came on to be heard before Judge Townsend and a jury. After plaintiff closed his testimony, a motion for nonsuit was refused. Defendant then replied to such testimony. After the charge of the presiding judge, the jury returned a verdict for the defendant. Thereupon the plaintiff appealed on the following grounds: "(1) His honor erred in charging the jury: 'Now, suppose you are travelling on the railroad to a dying relative at the end of your journey, that you are going to see, and by ordinary negligence you are delayed until that relative is dead, and it turned out it caused you great mental anguish; you would not be entitled to recover damages unless you have suffered actual loss, because the law says, "I won't give you damages for that, if it was for the want of ordinary care." But if it turns out that the company was guilty of willful and wanton negligence, and was grossly careless, then the law says you will get your damage then. Whether there is any actual loss of body or money, the law will punish them for that mental anguish,'--the error being in instructing the jury that recovery can only be had for mental anguish when the act is willful and wanton and gross, whereas it is submitted that it is not necessary that the act shall be composed of all three elements of negligence above stated, but that either one of the three mentioned is sufficient. (2) His honor erred in charging defendant's third request to charge; the error being in instructing the jury 'that damages cannot be recovered for mere mental suffering, disconnected from physical injury, and not the result of the willful wrong of the defendant,'--thereby excluding the jury from the right to find for the plaintiff on any ground other than willful negligence. (3) His honor erred in charging defendant's fourth request to charge, and in his comment to same; the error being in instructing the jury 'that plaintiff cannot recover in the absence of proof of malice or wanton and willful conduct on the defendant's part,' and, in his explanation of same, by further instructing the jury that 'there must be evidence of wantonness and...