Cloy v. Western Union Telegraph Co.
Cloy v. Western Union Telegraph Co.
Opinion of the Court
The opinion of the Court was delivered by
This case was tried at the fall, 1906, term of Court for Barnwell County. It appears that D. R. Cloy, one of the plaintiffs herein and husband of Lois E. Cloy, having been on a trip to Savannah wished to return to his home near Estell, S. C., on the 25th day of September, 1905, but was left by the train. Knowing that Mrs. Cloy would be expecting him, he telegraphed her the following message, which arrived at Estell about 2:30 o’clock: “We got left, go to your father’s tonight, will be on next train.”
Plaintiffs lived seven or eight miles from Estell and in order to secure a prompt delivery of the message, plaintiff, 'D.' R. Cloy, in addition to the regular charge, paid the defendant company one dollar, the amount demanded by the agent for delivery. The message was not delivered until about eight o’clock that evening. The complaint alleges that .the delay was wilful and wanton and as a result thereof, *111 “the plaintiff, Lois E. Cloy, was left at home alone with her infant child, in the country, isolated from friends or any one near enough to protect her; whereby she was frightened and worried to such an extent that she was compelled to leave her home and drive three miles in the dark alone with her infant child to the house of her father, through the forest; and by reason of all the facts hereinbefore set forth, the said Lois E. Cloy suffered great bodily pain, fear, mental anguish and anxiety to her damage nineteen hundred ‘and fifty dollars.”
A motion was made to strike out this language from the complaint on the ground that such results were not in the contemplation of the parties. The motion was refused, Judge Gage holding that the language “Go to your father’s tonight” was at least sufficient to warn the company that such results would follow from a failure to deliver the telegram. A motion for a nonsuit as to punitive damages was likewise refused. The jury found a verdict of eight hundred and fifty dollars for the plaintiff. The defendant appeals.
Speaking generally, whatever injury or mental suffering naturally and proximately resulted to the plaintiff by reason of the delay in delivering the message was a proper matter for allegation and proof. To strike out the allegations in question would deprive plaintiff of any right to recover for mental anguish.
We look in vain for anything in the testimnoy tending to show a reckless or wanton disregard of duty on the part of defendant.
*114 The plaintiff testified that the message was delivered to defendant’s agent at Savannah, between twelve and one o’clock on September 25th. It appears that some time was consumed in an effort to find out if the agent at Estell could procure a messenger to deliver the telegram at plaintiff’s home, about eight miles in the country, and after hearing from the Estell agent the Savannah agent agreed to deliver the message for one dollar in addition to the ordinary rate for delivery at Estell. A memorandum on the message blank stated that it was received at the Savannah office at 2 :30 P. M. The agent at Estell applied to Mr. Peeples, who conducted a livery business, to deliver the message, but he could not as his horses were all out. The Estell agent was informed by Mr. Peeples that the quickest way to get the message out would be by the mail boy. There was also no testimony that any other means of delivery was available. The defendant’s agent employed Wallace Hays, the mail boy, to carry the message and deliver it to Mr. Dickenson, postmaster at Seminole, which was six or seven miles from Estell, with one intervening- office to serve, with request that he get it out to Cloy’s with his mail. The mail boy arrived at Seminole a little before sundown and delivered the telegram to the postmaster. About a half an hour afterwards the postmaster delivered the telegram to Mr. Solomons, who carried it to Mr. Allen’s, and being unwell, he stopped there, and Mr. Allen sent the telegram on by a negro boy, who delivered it to the plaintiff at about eight o’clock. Here certainly was undisputed evidence of some effort to deliver, and the case clearly does not fall within that class of cases which permits an inference of wantonness from long delay without explanation or effort to deliver.
The fact that defendant’s agent paid the mail boy only twenty-five cents for his services, when the company charged one dollar for the special delivery, is referred to by respondent as a circumstance showing wantonness in failing to deliver in time, but it must be remembered that the delivery was not to be completed by the mail boy, for after the mess *115 age reached Seminole, it remained to be sent on by others acting for the company for whom compensation would have to be provided by the company if demanded. The mail boy regarded twenty-five cents as adequate compensation for his services, no doubt, because he was going to Seminole anyway, and could carry the message that far with little or no inconvenience.
There is no foundation in the testimony for the suggestion that defendant’s agent wilfully misappropriated the remaining seventy-five cents, and there is nothing to show that if the whole of the one dollar had been paid to the mail boy the message would have been delivered more promptly. When the company made the charge of one dollar for the special delivery, it was doubtless in contemplation that a team would have to be hired, as the effort to get a conveyance from the livery stable keeper showed. We fail to see how this circumstance could affect the question of wilfulness with respect to the delivery of the message. There was no evidence that defendant’s agent had opportunity to secure a speedier delivery of the message by using the special fee for that purpose and wantonly failed to do so. We, therefore, sustain the exceptions raising this question.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.
Reference
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- 1. Telergaph Companies. — From telegram to wife from husband: “We got left, go to your father’s tonight, will he on next train,” the company could infer failure to deliver before night would cause the wife to be at home a part of the night without protection, and to drive in the night time from her home to that of her father, alone through the forest. 2. Ibid. — Issues.—As a matter of law the Court cannot say, under the facts here, driving through the forest with her infant at night was the voluntary act of the wife. 3. Ibid. — Punitive Damages. — There being evidence here, uncontradicted, of an effort to deliver, and no evidence of wilfulness, and no evidence that defendant’s agent could have secured an earlier delivery by using all the fee charged for that purpose, the verdict for $850— held, excessive as plaintiffs are not entitled to punitive damages.