TELEGRAPH COMPANIES—DELAY—PRESUMPTION OP NEGLIGENCE—NONSUIT—PUNITIVE DAMAGES.
1. In an action for delay in delivering a telegram, if plaintiff establishes such fact it raises a presumption of negligence on the part of defendant.
¶ 1. See Telegraphs and Telephones, vol. 46, Cent. Dig. § 61.
2. Under Act 1898 (22 St. at Large, p. 693), providing that, where two or more acts of negligence are set forth in the same complaint, plaintiff shall not be required to elect between them, where a complaint alleges wantonness and willfulness in failure to deliver a telegram and also negligence, where there is no evidence to show the wantonness or willfulness, defendant is not entitled to a nonsuit on the whole cause of action.
3. In an action against a telegraph company for delay in delivery of message, whether it ex
ercised ordinary care is a question for the jury.
4. Punitive damages for intentionally failing to deliver a telegram may be demanded as of legal right.
Appeal from Common Pleas Circuit Court of Cherokee County; Townsend, Judge.
Action by Mamie Poulnot against the Western Union Telegraph Company. Prom judgment for plaintiff, defendant appeals. Affirmed.
GARY, A. J. This is an action for damages on account of the defendant's delay in delivering the following telegram: "Charleston, S. C, November 28, 1902. To Miss Mamie Poulnot, care D. H. Hall, 603 Jeffries street. Grand-mother dying, leave for home by first train; get Hall to purchase ticket. Will mail him check. E. H. Poulnot."
The fifth, sixth, seventh, and eighth paragraphs of the complaint are as follows:
"(5) That said message was received by defendant at its office in Gaffney on November 28, 1902, at 7:33 o'clock p. m.
"(6) That although on said November 28, 1902, after transmission of said message by defendant to its office in Gaffney, plaintiff was continuously at her place of residence in said town, or in easy and convenient access to same, where she could have been easily found and said message delivered, and although she was in easy and convenient reach of defendant's line and within its regular delivery limits in said city, and although defendant had notice of the importance of the contents of said message to plaintiff, and had received other messages almost simultaneously with the one already set out herein and of the same purport, the said defendant willfully, wantonly, and grossly negligently failed promptly to deliver said message to plaintiff, or to any one for her, and the same was not delivered to her or any one for her until 10:45 o'clock on the night of the 28th of November, 1902, and in the meantime plaintiff's said grandmother had died, and was buried in said city of Charleston, on November 29, 1902, at 3 o'clock p. m. That defendant was paid in advance for the delivery of said message.
"(7) That by reason of the wanton, willful, and gross negligence of defendant in failing to deliver said message promptly as it should have been done plaintiff was deprived of the privilege of seeing her said grandmother before her burial, and of attending her funeral, and of being with her family in their bereavement and during said funeral, and was thereby subjected to great suffering and mental anguish, and suffered damage in the sum of one thousand five hundred dollars."
The answer of the defendant was a general denial. The jury rendered a verdict in favor of the plaintiff for $1,000. The defendant appealed upon the following assignments of error:
"(1) Error in the presiding judge in admitting in evidence the telegram from the operator at Spartanburg to the operator at Gaffney, dated November 28, 1903, Exhibit C, for the reason that the same was irrelevant.
"(2) Error of the presiding judge in refusing the defendant's motion for a nonsuit made upon the following grounds: First. The evidence does not show, nor does it tend to show any willfulness, wantonness, or recklessness on the part of the defendant. Second. The evidence does not show, nor does it tend to show, any degree of negligence in the premises. Third. The evidence shows that after the message sued on was delivered to the plaintiff she sent a message, in which she notified her mother that she could not go to Charleston, but would write. At that time she did not know the condition of her grandmother other than what the delayed telegram contained, and she voluntarily refused to go even after the message was received.
"(3) Error of the presiding judge in charging the jury as follows (same being the first request of the plaintiff): 'A telegraph company for hire is a common carrier—that is, a carrier of news—and it is its duty to promptly deliver all messages intrusted to it for transmission.' The error being that it is not the absolute duty of the telegraph company to promptly deliver all messages intrusted to it for transmission, but only to exercise ordinary care and diligence in effecting a prompt delivery.
"(4) Error of the presiding judge in charging the jury as follows (this being the plaintiff's second request): 'It is the duty of such telegraph company to employ competent and diligent servants for the delivery of messages intrusted to it for delivery; and if such agent is not competent, and it is negligent in the delivery of such message, whereby the addressee of such message suffers mental anguish or other damage, the company is responsible for such negligence.' The error being that it is not the absolute duty of a telegraph company to employ competent and diligent agents for the delivery of its messages, but only to exercise ordinary care in the selection and employment of its agents.
"(5) Error of the presiding judge in charging the jury as follows (this being the sixth request of plaintiff): 'It was the duty of defendant's agent promptly upon receipt of said message to make a diligent effort to deliver same to plaintiff.' The...
