Anderson v. Western Union Tel. Co.

The opinion in this case was first filed on February 22d, but remittitur held up on petition for rehearing until March 9, 1910. The opinion of the Court was delivered by This is an action for damages alleged to have been sustained by the plaintiff through the *Page 256 wrongful acts of the defendant in failing to deliver a telegram. The allegations of the complaint, material to the questions under consideration, are as follows: "That on September 10, 1904, one J.P.B. O'Neil wrote a telegram directed to this plaintiff, in the care of J.F. Lucas, with whom this plaintiff was then living, at Walterboro, S.C. as follows: "Charleston, S.C. 9-10, 1904. Mrs. Mary J. Anderson, Care of J.F. Lucas, Walterboro, S.C. Can you come at once to confinement case? J.P.B. O'Neil. "That the defendant transmitted the said message, and delivered the same to this plaintiff at Walterboro, S.C. but negligently and carelessly, in gross and reckless disregard of the rights of this plaintiff, and its duty to her, so altered and changed the signature to the said telegram that when the same was delivered to this plaintiff the same did not read, `J.P.B. O'Neil,' but `J.P.B. Anderson.' "That the plaintiff, being a trained nurse, and engaged in earning her living by nursing the sick, had been engaged some time prior to the date of the said telegram, by the said J.P.B. O'Neil, to nurse his wife during her expected confinement, but when the said telegram was received, the same purporting to be signed by `Anderson' and not `O'Neil,' and this plaintiff knowing no person named `J.P.B. Anderson,' did not reply thereto, nor go to Charleston at once to take charge of the case, as she would have done had she known that such telegram had been sent her by J.P.B. O'Neil. with whom she was under agreement to nurse his wife. "That is consequence of the defendant's gross carelessness and negligence, as aforesaid, this plaintiff was greatly injured in her business, and suffered great loss, to her damage nineteen hundred and fifty dollars." *Page 257 The jury rendered a verdict in favor of the plaintiff for $189.00, and the defendant appealed upon exceptions, which will be set out in the report of the case. First Exception. The only objection to the use of the words mentioned in the exception, urged by the appellant, is that they were irrelevant and redundant. In setting forth a cause of action sounding in tort, and based upon negligence, it is necessary to use such words as will convey the idea that there was negligence; and there are no words more appropriate than "negligently" and "carelessly" in such cases. And the words, "gross and reckless negligence," were appropriate in alleging a cause of action for punitive damages. The second exception was abandoned. Third, Fourth and Fifth Exceptions. These exceptions will be considered together. The complaint alleged an agreement between the plaintiff and O'Neil, but failed to allege notice thereof to the defendant at the time the message was delivered to its agent for transmission. The proper proceeding on the part of the defendant was a motion to strike out the allegations as to the contract between the plaintiff and O'Neil. Traywick v. Ry., 71 S.C. 82, 50 S.E., 549. But having allowed such allegations to remain in the complaint, the defendant could not object to the testimony tending to prove them. Ragsdale v. Ry., 60 S.C. 381,38 S.E., 609; Dent v. Ry., 61 S.C. 329, 39 S.E., 527; Martin v. Ry., 70 S.C. 8, 48 S.E., 616. Furthermore, testimony was introduced several times, without objection, tending to establish said agreement. Sixth Exception. If the Circuit Judge erred in stating to the jury what acts of negligence were charged in the complaint, it was the duty of the defendant to call such error to his attention, and having failed to do so it is too late to raise such question. *Page 258 Seventh, Eighth and Ninth Exceptions. These exceptions will be considered together. There was testimony showing that the plaintiff was damaged to the extent of three dollars per day for forty-two days, aggregating one hundred and twenty-six dollars. The difference between this sum and one hundred and eighty-nine dollars, the amount found by the jury, is sixty-three dollars. There is no testimony tending to show that the plaintiff was entitled to this last mentioned sum. It could not be allowed as punitive damages, for the reason that his honor, the presiding Judge, ruled that such damages were not recoverable in this action; nor could it be allowed for board, as there was no testimony fixing the amount of damages in this respect. Waldrop v. Ry., 28 S.C. 157,5 S.E., 471. There is another reason why such damages were not recoverable for board, to wit: The plaintiff testified that she was not compelled to pay board, as a result of the failure to deliver the telegram. The sum of sixty-three dollars, therefore, should not have been included in the verdict. Following the practice laid down in the case of Blowers v. Ry., 74 S.C. 221, 54 S.E., 368, there should be a new trial nisi. It is the judgment of this Court that the judgment of the Circuit Court be reversed and a new trial granted, unless the plaintiff, within thirty days from the filing of the remittitur herein, shall remit upon the record the sum of sixty-three dollars, in which event the judgment for the remaining sum shall be affirmed. March 9, 1910.