Key v. Western Union Tel. Co.
Key v. Western Union Tel. Co.
Opinion of the Court
The opinion of the Court was delivered by
This action was brought by the plaintiff to recover damages for alleged wilful, wanton, and gross negligence of the defendant for delay in delivery of the following telegram received at its office in the town of Kershaw, S. C., on the 30th of April, 1904, directed to J. R. Key, Fort Mill, S. C.: “Come at once, your wife is very low.” The message was filed at 8.33 A. M., and transmitted to Fort Mill in> eight minutes thereafter. The Fort Mill office was a joint telegraph and railway office, the telegraph agent being also^ agent for the railroad and express companies. Except from 8.30 A. M., to 9.10 A. M., and during such other hours as local freight trains were at the station, when it was necessary for the agent to perform his railway and express duties, the telegraph office was open from 8 o’clock A. M., until 8 P. M. The business of the office was small, the receipts being ten to fifteen dollars a month, and there was no evidence that the hours during *303 which the office was open for business were not reasonable. The agent at Fort Mill had never heard of Key, the addressee of the message; but immediately upon receipt of the telegram, although during an hour when the telegraph office was not open- for business, he made an unsuccessful effort to locate him. Afterwards, between nine and ten o’clock A. M., he ascertained the plaintiff was an: operative of the Millfort Mill, and at once telephoned the message to McGregor, the assistant superintendent of the mill, who said he knew Key and could deliver the message to him. If McGregor had promptly communicated the message to the plaintiff, this would have been the quickest method of delivery. The plaintiff upon the receipt of the message from McGregor, which was between twelve and one o’clock, went immediately to his boarding house, changed his clothing, and without making inquiry at the office at Fort Mill, without attempting to hire conveyance, although he had the money and could have made the journey in about the same time over the public highway, and without ascertaining whether any trains could be had at Rock Hill, walked and trotted eight miles along the railroad track in the hope of catching a belated freight train to Kershaw. Upon arrival at Rock Hill, plaintiff found the freight train 'had passed and that the next train for Kershaw left at 6.30 the next morning; hence he had to spend the night. He testified to the mental anguish caused by the delay in reaching 'his sick wife; and that, as a result of the walk, he suffered great bodily discomfort, was made tired and stiff, and could hardly sleep that night or walk the next morning-. He reached Kershaw about ten o’clock on Thursday and drove seven miles to his father-in-law’s house where he found his wife still conscious and rational. She died about six o’clock the following Sunday. Plaintiff attended the funeral, and stayed with his wife’s people for one week after the burial. He testifies the discomfort caused by walking from Fort .Mill to Rock Hill was a large part of the suffering for which he was suing. *304 A judgment for five hundred dollars was recovered. The defendant appealed.
*305 We think, however, the walk of eight miles was not a result, such as was in the contemplation of the parties or could have been reasonably anticipated by the defendant from a failure to deliver the telegram; and for this reason, the pain and discomfort consequent upon it should not have been submitted to the jury as factors which they might consider in estimating actual or compensatory damages. Arial v. Telegraph Co., 70 S. C., 418, 50 S. E., 6; Rogers v. Telegraph Co., 72 S. C., 293, 51 S. E., 773; Carter v. Railway Co., 75 S. C., 355. In the very similar case of Jones v. Telegraph Co., 75 S. C., 208, the Court says: “The plaintiff remaining in a disagreeable livery stable for four hours on a cold day was not such a result as could have been within the contemplation of the parties, or such as should have been reasonably anticipated by the defendant from a failure to' deliver the telegram, and was the result of plaintiff’s choice to1 remain there instead of seeking a more comfortable place or pursuing his journey in a hired conveyance. Likewise his exposure to the cold and his suffering therefrom, beyond what he would have endured in any event even had his father met him as expected, was the result of his failure to hire the conveyance, ready at hand at any moment, and setting out on his journey with reasonable promptness, after knowledge that his father’s conveyance had not arrived. The' plaintiff had the means to procure' another conveyance, etc.” True, it was natural for the plaintiff, on' the receipt of the telegram announcing the serious illness of his wife, to make an effort to reach her as quickly as he could. He cannot, however, be allowed to place at defendant’s door uncalled-for hardship or suffering. It was his duty to minimize the damage by ordinary care in the use of the means at hand. Willis v. Telegraph Co., 69 S. C., 539, 48 S. E., 538; Jones v. Telegraph Co., supra; Carter v. Railway, supra. The plaintiff admitted in his testimony he could have 'hired a conveyance and avoided the obvious and extraordinary strain of a very rapid walk of eight miles, much of which was a trot. Eor such physical *306 exertion and' hardship, not within the contemplation of the parties and not to be anticipated by the defendant, the plaintiff cannot recover.
The plaintiff did not testify to any relations or feelings concerning his wife differing from those of other normal persons in like relation, and there is no foundation for the objection to his evidence on this point.
The judgment of this Court is that the judgment of the Circuit Court be reversed and the cause remanded for a new trial on the cause of action alleging negligence.
Reference
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- 1. Telegraph Companies — Damages.'—The allegations in the complaint in this case permit evidence of physical suffering from walking eight miles, but such exposure and hardship not being in the contemplation of the contracting parties and not to be anticipated by the defendant when transmitting the message, this element of damages should not have been submitted to the jury. 2. Ibid. — Punitive damages should not be awarded for failure to promptly deliver a message received out of office hours in a small town, where the agent was both railroad and telegraph agent, and could not at time of receipt of message go himself to deliver it, or send one of his help, because of his railroad duties; where addressee was unknown to agent, but after some delay was located by telephone at a mill, and message was sent to assistant superintendent over the telephone, who promised to deliver at once, but did not.