Greer v. Western Union Telegraph Co.

The opinion of the Court was delivered by Mr. Justice Gage. This cause has been hither once before, 96 S. C. 423, 81 S. E. 517. It comes on a new complaint and for a trial de novo, but the transaction out of which both trials arose is practically the same. The present contention of the plaintiff is that the cause now up is a suit at common law, and puts in issue only the wilful conduct of the defendant, arising out of its failure to transmit and deliver to a certain person at Anderson, S. C., a prepaid telegram, which she sent to him from Gainesville, Ga. That issue, the plaintiff contends, was expressly not decided in the first case above referred to; but the plaintiff contends the issue was made in the pleadings of the first action. The telegraph company demurred to the complaint in the second action, and the Circuit Court (Judge DeVore) overruled the demurrer. The Circuit Court thought this Court had only decided that the plaintiff h'ad not proved a case under the mental anguish statute. Thereupon at a subsequent term the 'Circuit Court (Judge Memminger') properly esteemed himself bound by the order of the Judge who had preceded him, and he sent the cause to a jury, and the jury found a verdict for 70 cents actual damages and $750 punitive damages. The Court expressed great doubt about the legality of the verdict, reduced it to $250 “in the interest of settling litigation,” and stated that but for the prospect of thereby ending the case the verdict would have been set aside. The appeal is from the action of the Circuit Court at the two terms referred to. The exceptions are in detail. They will not be so considered, but we hope to include all the issues made by them. *149 The writer of this opinion concedes that the Circuit Court may have been embarrassed by his failure in the opinion heretofore written to have more fully discussed the complaint in the first suit. 1. The complaint in the two actions are in certain parts of them largely identical, yet there are allegations in the complaint of the second action which are widely different from those in the complaint of the first action. It plainly appears from the complaint of the second action that the plaintiff sues, and sues alone, at common law for the wilful failure of the telegraph company to transmit and deliver a prepaid telegram sent by her from Gainesville to Anderson. The complaint in the first action is far from that. It recited what were termed by it two causes of action: The first upon a telegram sent' by the plaintiff from Columbus, Ga., to Anderson, which was delivered, but tardily; the second upon a telegram sent by the plaintiff from Gainesville to Anderson, before referred to, -and which was never delivered. There is no real difference betwixt the allegations of the two alleged causes of action; the only difference lies in the circumstance that they described two delicts, but both of the same character. In both of the two stated causes of action of the first suit the real injury to the plaintiff, or the wrong suffered by her, was set out in these words: First cause of action: “Plaintiff was prevented from seeing her dead father and from attending his funeral services and burial and being at his side at the grave, and upon her arrival at said destination on the evening of the 23d day of September aforesaid was greatly shocked to learn that her father had been buried, and by reason of all these things and .of her being prevented from giving sympathy and support to those dear to her, and her said father, and of receiving sympathy of near relatives in such a trying event and of being at her home on so sad occasion plaintiff has suffered, and still suffers, anguish, grief, and stress of mind, all to her damage in the sum of $1,500.” *150 Second cause of action: “Plaintiff was prevented from seeing her dead father and from attending his funeral services and burial and being at his side at the grave, and upon her arrival at said destination on the evening-of the 23d day of September aforesaid was greatly shocked to learn that her father had been buried, and by reason of all these things and of her being prevented from giving her sympathy and support to those dear to her and her said father, and of receiving sympathy of near relatives in such trying event and of being at her home on so sad occasion, plaintiff has suffered, and still suffers, anguish, grief, and stress of mind, all to her damage in the sum of $1,500.” The first suit was wholly under the mental anguish statute (Civil Code 1912, section 3330), without reference to whether plaintiff’s counsel called it double-barreled or single-barreled. The appellant’s counsel filed no printed argument, but he frankly admitted in his oral argument of the instant case that “the first suit jumbled a mental anguish and a common law action.” A cause well pleaded is half won, and the converse is true. A fair construction of the whole complaint in the first suit makes it manifest that the plaintiff demanded $1,500 to appease her anguish, which arose out of circumstances which followed upon the telegraph company’s failure to do its duty to her in the two instances recited. 2. The complaint in the second suit, that now up for consideration, apart from these historical recitals which refer to the first suit, is distinctively for the failure of the telegraph company to send and to deliver a prepaid telegram sent by the plaintiff from Gainesville to Anderson, which failure the plaintiff characterizes as wilful. This suit is, therefore, apart from the mental anguish statute. Conceding for the present that for such a delict the telegraph company is liable to pay back to the plaintiff the charge made for the service undertaken and not performed, and so much more as a jury might assess to punish the company for its alleged wanton *151 ness, yet we are of the opinion that this action may not now be entertained. The transaction is'the same in every detail out of which the first suit arose. It was the duty of the plaintiff to put in issue in that suit every issuable matter which naturally and directly arose out of that transaction. If the single transaction, the omission by the defendant, involved the breach of a statute and at the same time a breach of the common law, then for such breaches the defendant ought to be sued only once. A wise administration of the law prohibits a party from splitting one transaction into several suits. Chancellor Harper said: “What the parties have once had an opportunity of litigating, in the course of a judicial proceeding, they shall not draw into question again; but that whatever might properly have been put in issue shall be concluded to have been put in issue, and determined.” McDowall v. McDowall, 8 S. C. Eq. (Bailey Eq.) 330. See, also, Cartin v. Railroad, 43 S. C. 224, 20 S. E. 979, 49 Am. St. Rep. 829; Haddon v. Lenhardt, 54 S. C. 88, 31 S. E. 883. In Hart v. Bates, 17 S. C. 35, a more limited rule seems to be stated; but the facts of that case warranted the conclusion the Court reached; the matter there pleaded as res adjudicata was not allowed, but because the facts alleged in the second action were not known to the plaintiffs when the first action was tried. We are, therefore, of the opinion that the judgment below must be reversed, and the complaint dismissed. It is so ordered. Footnotes [1] Footnote. — See Emory v. Hazard Powder Co., 22 S. C. 476, distinguishing causes of action from remedies.