Wilcox v. Richmond & D.R. Co.

• Decision Date: 11 October 1892
• Docket Number: 16.
• Parties: WILCOX v. RICHMOND & D.R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

52 F. 264

WILCOX v. RICHMOND & D.R. CO.

No. 16.

United States Court of Appeals, Fourth Circuit.

October 11, 1892

Statement by HUGHES, District Judge:

This action was commenced in 1890 by the service of a complaint and summons on the defendant in the court of common pleas for Laurens county, state of South carolina. The complaint alleges that plaintiff in error was a physician, attending the sittings of the State Medical Association at Laurens on the 24th of April, 1890; that at 3:45 P.M. of that day he was informed by telegraph of the dangerous illness of his father at Marion Court House, S.C.; that at that hour he contracted with the defendant railroad corporation to convey him to Columbia, S.C., by 10:20 of the night of said day, for which service he then paid defendant the sum of $195; that he was anxious to see his stricken father at the earliest practicable moment, and to do so it was necessary to reach Columbia at the moment stated, or be delayed a considerable time, in view of which circumstances he entered into the contract stated; that the defendant was fully informed of the peculiar circumstances influencing him to make the contract; that the defendant failed and refused to perform its agreement; that the plaintiff, as a consequence of this breach of contract suffered 'great distress of mind, anxiety, mortification and suspense,' by reason of which he sustained damages in the sum of $5,000. As a second cause of action, plaintiff demanded the recovery of $195 and interest from the 24th day of April, 1890, and costs. His suit was for these latter sums, and for $5,000 damages for the first cause of action alleged. The defendant, in its answer, admits that the plaintiff wished to get a special train from Laurens to Columbia, and paid defendant $195 for such train. Defendant agreed to run the train for such sum, but notified the plaintiff that it could not guaranty that the train would reach Columbia in time to make connection with the Coast Line, though it had every reason to believe that it could make such connection, but the plaintiff refused to take the train unless the guaranty was made. This the defendant declined to do, and tendered the plaintiff the money back at once, which the plaintiff refused. The defendant furthermore alleges that it made every effort in its power to accommodate plaintiff, and, while it informed him that it believed the train would reach Columbia in time for the connection, it did not and could not reasonably be expected to guaranty the same. The defendant also alleges that it has heretofore offered the plaintiff the $195, now offers the same to him and brings the said $195 into court, and against tenders it to the plaintiff. The cause was removed to the United States circuit court for the district of South Carolina. It came on for trial before a jury at Columbia, 2d December, 1890. The defendant, through its counsel, under the statute of South Carolina, interposed an oral demurrer to the first cause of action, to wit, that the complaint did not state facts sufficient to constitute a cause of action, in that damages could not be recovered on a breach of contract for mental suffering, unaccompanied with physical suffering or pecuniary loss. The court sustained the demurrer, and directed the jury to find a verdict on the second cause of action for plaintiff for $195, without interest or costs. Whereupon the plaintiff excepted, and now appeals, alleging for error: (1) That the court erred in not overruling the demurrer; (2) in instructing the jury not to find interest and costs for the plaintiff.

B. W. Ball and C. A. Woods, for plaintiff in error.

J. S. Cothran, for defendant in error.

Before FULLER, Circuit Justice, GOFF, Circuit Judge, and HUGHES, District Judge.

HUGHES District Judge, (after stating the facts as above.)

The complaint, in setting out the first cause of action, omits several material facts in the case. It alleges only the contract to be conveyed by a certain time, to a certain place, for a certain sum of money paid; the motive of plaintiff for wishing to be conveyed; and the refusal of defendant to convey as desired. The defendant's refusal to guaranty arrival by the required time; the plaintiff's refusal...