Ogilvie v. Western Union Tel. Co.
Ogilvie v. Western Union Tel. Co.
Opinion of the Court
The opinion of the Court was delivered by
The defendant-appellant seeks to reverse a judgment for $500* in favor of plaintiff for alleged negligent and wanton failure to deliver the following message, filed by Jeremiah Smith with defendant’s agent at Conway, S. C., and addressed to the plaintiff at Lexington, S'. C. :
“Daggett badly cut with saw; flesh wound; not necessarily fatal; both come.”
Daggett referred to in the message was plaintiff’s son. The message, as alleged, was filed with the defendant for transmission about 4 o’clock p. m. on Saturday, November 12, 1904, and was not delivered until about 10 :30' o’clock a. m. on November 13, 1904, resulting in delaying plaintiff in reaching her son for about twenty-six hours, and thereby causing her to suffer great grief and mental anguish.
It is alleged that the Court erred in not giving the jury without modification defendant’s sixth request, as follows:
*113 *10 “A telegraph company, under the mental anguish act, is not liable for mental anguish which was merely incidental *11 to its failure to deliver a message, and, 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 can not recover for any feeling of disappointment, annoyance or vexation which she may have felt by reason of the failure to promptly deliver the message in question.”
The Court charged the first sentence of the request, but refused to charge the last sentence, and instead charged as follows: “That means the failure to deliver must cause the suffering, and the test is what the jury think that a person of ordinary feeling, the usual ordinary feeling in this case; I charge you that feeling that you conclude a mother, the ordinary mother, that the ordinary mother should have under similar circumstances; you can not take the way of a person of a very excitable temperament or impulsive disposition on the one hand, or one of very callous disposition on the other; the test you go by is what, in your judgment, a person of ordinary feeling under similar circumstances, what feeling they had, or should have suffered, — suffered under similar circumstances.”
It is contended that the modification was not in harmony with the construction of the statute given in Johnson v. Tel. Co., 81 S. C., 235. The Court in that case was considering the application of the statute with respect to relatives not connected with the subject of the message by close family ties, and, therefore, not likely to sustain the mental anguish contemplated by the statute. The present case involved the mental suffering of a mother with respect to her son. Her regret or disappointment in being delayed in reaching and ministering to him may have been so keen or bitter or intense as to be properly charged as mental anguish. The charge given sufficiently covered the issue.
*12
The exceptions are overruled and the judgment of the Circuit Court is affirmed.
Reference
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- 2 cases
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- Syllabus
- 1: Telegraph Companies — Mental Anguish. — Evidence admitted did not tend to show plaintiff’s suspense and suffering were beyond what an average normal mother would feel in her situation caused by delay in delivering a telegram. 2. Ibid. — Damages—Income.—Evidence as to the receipts of a railroad company at a particular station, whose agent at that point acted also as agent of the telegraph company there and that his work in his dual capacity was too much for one man, is not wholly irrelevant. But it is not supposed the jury estimated the damages found by it against the telegraph company by reference to the income of the railroad company. 3. Ibid. — Mental Anguish. — Regret or disappointment of a mother in being delayed in reaching and ministering- to her son by reason of delay in delivery of a telegram may have been so keen, or bitter, or intense, as to be properly characterized as mental anguish. 4. Ibid. — Office Hours — Issues.—The reasonableness of office hours of a telegraph company is a question of law where there is no dispute as to the facts, but where there is such dispute, the issue should be sent to the jury. 5. Ibid. — Punitive Damages. — Unexplained delay at relay office of telegram from 4 p. m. of one day until 10:06 a. m. next day is sufficient to carry issue of punitive damages to the jury.