Talbert v. Western Union Tel. Co.

• Decision Date: 27 May 1909
• Citation: 64 S.E. 862,83 S.C. 68
• Parties: TALBERT v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

64 S.E. 862

83 S.C. 68

TALBERT v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

May 27, 1909

Appeal from Common Pleas Circuit Court of Edgefield County; John S Wilson, Judge.

Action by Mrs. Lillie C. Talbert against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The following are the exceptions of defendant:

"Because the presiding judge erred:

"(1) In not sustaining defendant's motion to strike out in paragraph 3 of the complaint the following words 'with a relapse of typhoid fever,' and the words 'Between Columbia, S. C., and Asheville, N. C., with a spell of typhoid fever. That the plaintiff, his wife, had been with him and nursed him for about five weeks, when he became convalescent and seemed to be out of danger. That the plaintiff has an invalid son who needs her constant care and attention; and that she was thoroughly exhausted in mind and body by the double strain on her on account of the illness of her husband.' Also the words, 'in order to recuperate her strength and in order to place her invalid son where he could have attention that he needed.' The said matters being irrelevant, not stating any element of damage for which the defendant was liable, were not in contemplation of the parties at the time the message was filed for transmission, and there is no allegation in the complaint that such state of facts was made known to the defendant by the party filing the message, and the message does not on its face disclose such state of facts.

"(2) In permitting F. P. McGowan, a witness for plaintiff, to testify, over objection of defendant's counsel, as follows: 'Q. Do you recall what her condition was at the time she came there? (Referring to Mrs. Talbert's condition at the time she visited his house at least two weeks prior to October 18, 1906.) A. Mrs. Talbert's condition? Q. Yes. A. She seemed to be rather worn out and tired and exhausted, physically, was not strong. Q. Whom did she have with her? A. A little boy about eight years old. Q. What condition was he in? (Objected to as irrelevant and incompetent. The company had no notice of it.) The Court: I will let it in. Mr. Nelson: We would like objections to be noted to all this testimony. Q. (By Mr. Nicholson) What is the condition of the little boy? A. Paralytic; can't walk but can talk, but cannot feed himself without aid. Q. With reference to his mother's care, was he a care and a charge on her? A. Yes, sir; it was necessary for her to give him her personal time all the while. He will not allow any other person to attend to his wants, and she has to give him her constant attention.' Said testimony being irrelevant, not stating any element of damage for which the defendant was liable, and being in reference to circumstances not in contemplation of the parties at the time the message was filed for transmission, and the defendant was not then nor at any time advised of such state of facts, and the message itself on its face does not disclose any such state of facts.

"(3) In not permitting the said F. P. McGowan, on cross-examination, to answer the following question: 'Q. Did Mr. McLeese say anything when he delivered the telegram with

reference to the telegram? Did Mr. McLeese make a statement to you with reference to this telegram, the cause of its being delayed, the telegram in suit, at the time of its delivery?' The error being that the declarations of McLeese, who was the agent of the company at Laurens, accompanied the act of delivery to McGowan and tended to explain it, and was a part of the res gestae.

"(4) In refusing the motion of defendant's attorney to strike out the reasons given by the said F. P. McGowan why the plaintiff, Mrs. Talbert, did not go on the train on the night of the 18th of October. The reasons assigned by said witness were: 'I did not think that a lady with a paralytic child could safely go on that train which left at 10 o'clock at night at Laurens and getting to Greenwood in the night.' And in permitting the said witness, over objection of defendant's counsel, to testify as to Mrs. Talbert's being partially blind, near-sighted, wearing glasses, and its being difficult for her to see at night, and that with this child he did not think it advisable for her to undertake to go on a freight train at night and try to make the trip to Parksville. The error being that it was merely the opinion of the witness, and he and the plaintiff determining that she should not take the night train was a voluntary act on her part for which the defendant could not be held responsible, and her failure to take the train was not the result of any act of the defendant.

"(5) In permitting the plaintiff, Mrs. Lillie C. Talbert, over objection of defendant's counsel, to testify as follows: 'Q. Why did you leave your husband? Mr. Nelson: We object; irrelevant and incompetent. We are not charged with notice why she left for Mr. McGowan's. The Court: I will let that out to explain her conduct. Q. Why did you leave your husband and go back to Mr. McGowan's? A. I was weak and my baby was on my hands. He was nervous, could not stay in the house, and I had to keep him outdoors. Q. How. old is that child? A. Eight years old. He is most like a baby. Q. He is a paralytic? A. Yes, sir. Q. What was your condition there? A. I was up, but not very strong, physically weak. Q. Why did you have to keep this child outdoors most of the time? A. Because he was nervous and made a noise. Mr. Nelson: We object. The Court: I do not think that is an allegation of the complaint. Mr. Nicholson: We don't insist on that. Q. You stated you had this child and your husband? A. Yes, sir. Q. Why did you go to Laurens? A. To rest, because my health was broken down. Q. You took the child with you? Now, after you got to Mr. McGowan's how long was it before the second telegram came? A. It was about seven days, not quite a week.' Said testimony being irrelevant and incompetent, in that the defendant was not charged with notice of the condition of plaintiff or of her child or of the reasons why she left her husband, and said testimony failed to establish any cause of action which might exist against the defendant for its failure to deliver the telegram; and said testimony was prejudicial to the defendant, in that it tended to show extraordinary damages, resulting from special circumstances, of which the defendant had no notice, for which it was not responsible, and of which the delay in the delivery of the telegram was not the proximate cause.

"(6) In that he refused to charge the following portion in italics of defendant's fourth request to charge: '(4) In an action such as this, the defendant is charged with the suffering, if any, which the failure to deliver the message may reasonably be expected to produce when its contents are considered, not with the suffering due to a peculiar temperament, but that of an ordinary human being, and under the mental anguish act, the plaintiff in this case cannot recover for the anxiety which she may have suffered on account of the illness of her husband, nor for any feeling of annoyance, disappointment, or vexation which she may have felt by reason of the failure to promptly transmit and deliver the telegram in question.' It being respectfully submitted that the portion of the request refused contained a sound proposition of law applicable to this case, in that plaintiff had been permitted to testify as to her condition and that of her child and her husband over defendant's objection.

"(7) In refusing defendant's twelfth request to charge: '(12) In a case where the sender of a message knows that the addressee is a visitor in a strange city, staying with a relative whose name is not the same as the addressee, and fails to give any further address than the name of the city, I charge you the sender is guilty of negligence, and if this negligence should contribute as a proximate cause to delay in delivery of the message, neither the sender nor the addressee could recover damages.' The error being that said request correctly stated hypothetically a correct proposition of law applicable to this case.

"(8) In charging plaintiff's third request to...