Simmons v. Western Union Tel. Co.

• Decision Date: 11 April 1902
• Citation: 41 S.E. 521,63 S.C. 425
• Parties: SIMMONS et al. v. WESTERN UNION TEL. CO.
• Court: South Carolina Supreme Court

41 S.E. 521

63 S.C. 425

SIMMONS et al. v. WESTERN UNION TEL. CO.

Supreme Court of South Carolina

April 11, 1902

Appeal from common pleas circuit court of Greenville county; Klugh Judge.

Action by Maud Simmons and F. M. Simmons, her husband, against the Western Union Telegraph Company. From judgment for plaintiffs, defendant appeals. Affirmed.

Smythe Lee & Frost and Geo. H. Feasons, for appellant. B. A. Morgan for respondents.

JONES J.

This was an action for damages for negligently failing to deliver a telegraphic message. The appeal comes from a judgment for $500 against the defendant.

The first question presented is whether the court erred in refusing defendant's motion to strike out certain allegations of the complaint. We therefore incorporate herein such allegations of the complaint as will make clear the question presented. It is alleged: "That on the 22d day of March, 1901, F. M. Simmons, the husband of the plaintiff Maud Simmons, was in Greensboro, N.C. The said Maud Simmons had in some way heard her husband was sick, but could not ascertain whether he was slightly or seriously so. To be able to ascertain his condition, and to relieve herself of the terrible suspense and stress of mind, she did on said day deliver to the defendant, at Greenville, S. C., for transmission and delivery, the following prepaid message, to wit: 'Greenville, S. C., March 22d, 1901. F. M. Simmons Care Keely Institute, Greensboro, N. C.: Are you sick? Answer at once. Mrs. F. M. Simmons.' (6) This message was promptly delivered by the defendant to the said F. M. Simmons, at Greensboro, N. C., whereupon he at once caused to be delivered to the defendant, at Greensboro, N. C., for transmission and delivery to the plaintiff, Maud Simmons, and the defendant for such purpose received the following message, to wit: 'Greensboro, N. C., March 22, 1901. Mrs. F. M. Simmons, Greenville, S. C.: Have been sick. Am better now. Don't be uneasy. F. M. Simmons.' (7) That the defendant had notice of the importance of said message, and of the annoyance, anxiety, pain, and suffering that would result to the plaintiff Maud Simmons if the message was not transmitted and delivered. (8) That the defendant so negligently performed its duty that said message was not transmitted and delivered within a reasonable time, and its conduct in that behalf was so wanton or willful or reckless that said message has never been delivered. (9) The plaintiff Maud Simmons received no response to her said message. That the reason therefor was the negligence, or wantonness, or willfulness, or recklessness of the defendant in transmitting or delivering the said message addressed to her. That she relied upon the prompt delivery of her message of inquiry, before described, and, believing it had been delivered, and receiving no response, was because of the aforesaid reasons subjected to all the annoyances, anxiety, pain, and trouble of mind incident to the conditions thereby created. In consequence of the negligence, or wantonness, or willfulness, or recklessness of the defendant as aforesaid she was made to suffer great and grevious mental anguish, pain, and suffering, and was made sick, forced to take her bed, and call in the services of a physician, and expended large sums of money in medicine, care, and nursing, all to her damage $2,000." The motion was to strike out the words in the last sentence above, "and was made sick, forced to take her bed, and call in the services of a physician, and expended large sums of money in medicines, care, and nursing," as irrelevant and surplusage, and not legally connected with or resulting from the cause of action set out in the complaint. We think the motion was properly refused. The allegations were relevant to the cause of action, the action being for damages resulting from mental anguish and physical suffering alleged to have been caused by the defendant's negligence. The court could not say, as matter of law, that bodily illness is not a natural and proximate result of negligence in delivering certain messages. It was the province of the jury to determine whether such was the fact upon the testimony given.

The next and main question presented is whether the "mental anguish" act, approved February 20, 1901, violates the fourteenth amendment to the United States constitution in depriving telegraph companies of property without due process of law, and in denying them the equal protection of the laws, and also section 5, art. 1, of the state constitution, containing similar provisions. This question was presented to the Court below on demurrer to the complaint and requests to charge, and is renewed here by proper exceptions. The act is as follows:

"An act to allow damages against telegraph companies doing business in this state, for mental anguish or suffering, even in the absence of bodily injury caused by negligence in receiving, transmitting or delivering messages.

Section 1. Be it enacted by the general assembly of the state of South Carolina: That from and after the passage of this act, all telegraph companies doing business in this state shall be liable in damages for mental anguish or suffering even in the absence of bodily injury for negligence in receiving, transmitting or delivering messages.

Sec. 2. That nothing contained in this act shall abridge the rights or remedies now provided by law against telegraph companies, and the rights and remedies provided for by this act shall be in addition to those now existing.

Sec. 3. That in all actions under this act the jury may award such damages as they conclude resulted from negligence of said telegraph companies."

23 St. at Large, p. 748.

We hold with the circuit court that the act is not unconstitutional in the particulars named. "Due process of law" means the same as "the law of the land," and, as a general rule, involves an opportunity before a proper tribunal under established procedure to make contest in defending or enforcing a legal right. Murray v Improvement Co., 18 How. 272, 15 L.Ed. 376; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 572. The legislature cannot, without violating this provision, arbitrarily deprive one of his fundamental rights appertaining to life, liberty, and property. But this legislation deprives telegraph companies of no right. Its design is to compel the performance of a duty imposed by law and their own contract. They have no right to be negligent in the conduct of their duties and business, which so largely affects the public welfare. It is neither arbitrary nor oppressive that they shall be liable for such damages, including mental suffering, as a competent legal tribunal shall determine to be the result of their negligence. Legislation is not unequal nor discriminatory, in the sense of the equality...