Hughes v. Western Union Tel. Co.

The opinion of the Court was delivered by Mr. Justice Gary. This is an action for damages arising out of the alleged negligence and wilfulness of the defendant in failing to deliver a telegram addressed to the plaintiff, announcing the death of his brother. At 12.30 p. m., on the 18th of December, 1903, the sister of the plaintiff filed with the defendant at Coleman, Florida, the following message, addressed to Alonzo Hughes, Heath Springs, S. C.: “John killed at Panasoffkee at mill this morning. “(Signed) Dora Hughes.” It is alleged that the message was not delivered to the plaintiff until 2 o’clock p. m. on the 19th of December, 1903, although it was received by the defendant at its office in Heath Springs at 8 o’clock a. m. on the 19th of December, *522 1903. Some time during the afternoon of the 19th of December the plaintiff sent the following telegram to his sister, at Coleman, Florida: “Telegram received at 2 p. m. Will come if possible. “(Signed) Alonzo.” The sixth, seventh, eighth and ninth paragraphs of the complaint will be set out in the report of the case; also, the defendant’s fourth request to charge, together with the modification therof by his Honor, the presiding Judge; also the appellant’s exceptions. The jury rendered a verdict in favor of the plaintiff for $700. In considering the exceptions, we will refer to them by their numbers. 1 First end second exceptions: Section 2223 of the Code of Laws is as follows: “All telegraph companies doing business in this State shall be liable in damages for mental anguish or suffering even in the absence of bodily injury, for negligence in receiving, transmitting or delivering messages. Nothing in this section shall abridge the rights or remedies now provided by law against telegraph companies, and the rights and remedies provided for by this section shall be in addition to those now existing. In all actions under this section the jury may award such damages as they conclude resulted from negligence of said telegraph companies.” It will be well to bear in mind at the outset, that it was not the object of the statute, in a case where a telegraph company negligently fails to deliver a telegram announcing the death of a person, to confer upon the addressee of the message a right of action based upon the fact that he was thereby deprived of the consolation of seeing the face of the dead, being present with the family in the trying hours of sorrow, or taking part in the funeral ceremonies. These facts may be introduced in evidence, in a proper case, for the purpose of showing mental suffering, but they form no part of the *523 cause of action, and are merely evidentiary.' Harrison v. Tel. Co., 71 S. C., 386. The intention of the statute was to give a right of action for mental anguish suffered by the addressee as a direct and proximate result of the negligent delay in delivering the message. If, when such telegram is received by the addressee, he knows that he could not have arrived in time, then there is no legal foundation for mental anguish arising from the failure to deliver promptly. . But, on the contrary, if he would have gone, and it appears upon the face of the telegram that there was a probability for him to have arrived in time, in case it had been promptly delivered, then the thought of being deprived of this privilege would naturally and reasonably be expected to produce anxiety and pain, and may fairly be said to have been in contemplation of the contracting parties. The fact that the parties in charge of the funeral rites may have seen proper to fix a time when it would not have been possible for him to have attended, even if the message had been delivered in time, does not prevent the suffering of mental pain before he had knowledge of such fact, when the telegram showed that there was a probability he would have been able to go in time, if it had been promptly delivered. This interpretation of the statute is just and fair both to the telegraph company and the addressee, as it makes the liability dependent upon facts existing at the time of delivery and which can be made certain, instead of being based upon circumstances that are uncertain, and subject to the caprice of others not parties to the contract. Furthermore, the request set out in the first exception was substantially the same as the request herein-before mentioned, which the presiding Judge charged, except as modified and the modification was too favorable to the appellant. 2 Third exception: The question presented by this exception has been adjudicated in the recent cases of Hellams v. Tel. Co., 70 S. C., 63, and Harrison v. Tel. Co., 71 S. C., 386. *524 It is the judgment of this Court, that the judgment of the Circuit Court be affirmed. Mr. Justice Woods concurs in the result.