Talbert v. Western Union Telegraph Co.

June 17, 1909. The opinion of the Court was delivered by This is an action for damages for mental anguish, alleged to have been suffered by the plaintiff on account of the delay in the delivery of the following telegram: "Parksville, S.C. October 18, 1906. Mrs. J.L. Talbert, Laurens, S.C. Come at once; Joe not expected to live through night. J.B. TALBERT." "Joe" was plaintiff's husband, who was ill at his home near Parksville, and Mrs. Talbert was at the time visiting her sister. Mrs. F.P. McGowan, at Laurens, S.C. The telegram was handed to the agent at Parksville about 7 o'clock p. m., but was not delivered to the addressee until about 3:40 o'clock p. m. on the 19th of October. The agent at Parksville knew the plaintiff, and that she was the wife of Joe Talbert. *Page 76 The complaint alleges negligence and wilfulness, but the claim for punitive damages was withdrawn at the close of plaintiff's testimony. The jury rendered a verdict in favor of the plaintiff for $500. The defendant made a motion for a new trial, which was refused. The defendant appealed upon numerous exceptions, which will be set out in the report of the case. In considering the exceptions we will adopt the arrangement followed by the appellant's attorneys in their written argument. Exceptions 1, 2, 4, 5, and Subdivisions 1 and 11 of Exception 9. The allegations of the complaint, which the defendant's attorneys made a motion to strike out, were not intended to set forth an additional element of damages, but were merely of an explanatory nature. There has been a trial upon the merits; and, conceding that in strictness of pleading they were objectionable, the appellant has failed to satisfy this Court that they, or the testimony mentioned in the exceptions, were prejudicial to its rights. Third Exception. J.M. McLeese afterwards was examined as a witness, and testified fully as to the cause of delay. It can not be successfully contended that testimony as to what McLeese said is higher in degree than his testimony, when examined as a witness. Wallingford v.Tel. Co., 60 S.C. 201, 38 S.E., 443. Therefore, the refusal to allow the witness to answer the question was not prejudicial. Sixth Exception. When the words in the request, which he refused to charge, are considered in connection with the entire charge, it will be seen that this exception can not be sustained. *Page 77 Seventh Exception. This request was properly refused, as its submission would have invaded the province of the jury, and would have been a charge upon the facts. Eighth Exception. As hereinbefore stated, the testimony showed that the agent at Parksville knew the plaintiff, and that she was the wife of Joe Talbert; and there was a presumption that delay in the delivery of the message would cause her mental anguish. Subdivisions III, IV and V of Exception 9. Subdivisions III must be overruled, for the reason that it is only necessary to refer to the testimony to show that the plaintiff suffered mental anguish, for which the statute makes the defendant liable in damages. Subdivision IV can not be sustained in the light of the testimony. Subdivision V has already been disposed of. It is the judgment of this Court that the judgment of the Circuit Court be affirmed. MR. JUSTICE WOODS concurs in the result. June 17, 1909.