Oxner v. Western Union Tel. Co.

63 S.E. 545, 82 S.C. 510, 1909 S.C. LEXIS 10

• Court: Supreme Court of South Carolina
• Decided: May 5, 1909
• Docket: 7183
• Status: Published

Opinions

May 5, 1909. The opinion of the Court was delivered by This action was brought to recover damages for mental anguish resulting from alleged wilful, wanton, and gross negligence of the defendant in failing to deliver a telegram filed by plaintiff with defendant's agent March 30, 1907, at Whitmire, S.C. for transmission and delivery to George W. Pearson at Newberry, S.C. The complaint alleged that the plaintiff having heard that a disastrous fire had occurred in the town of Newberry, and that the house of her father, George W. Pearson, with whom resided her two small children, was included in the burned district, she delivered for transmission to him this message, "Are you safe? Answer," and suffered mental anguish because of defendant's wanton failure to deliver the message. On the motion for nonsuit, the Circuit Court held that there was no proof of the contents of the message, and no testimony of any notice to defendant that plaintiff's children were in any precarious condition, and hence that there was no evidence of mental anguish; but nevertheless the Court held that the case should be submitted to the jury, because there was testimony that the plaintiff had paid 25 cents for the delivery of a message which was never delivered, and it was for the jury to say whether there was a wilful or wanton failure to deliver.

The jury rendered the following verdict: "We find for the plaintiff $510 on account of wantonness." On the motion for new trial the Court held that there was some evidence of actual damages, the amount paid for the delivery of the message, and there was some evidence of a wilful failure to deliver, and so refused to set aside the verdict.

We do not deem it important to consider the exceptions in detail. The vital and controlling question is whether there was any evidence of wilfulness. If there was, the exceptions show no reversible error: if there was not, there should be a reversal.

The evidence tends to show that, a very disastrous fire having occurred in the town of Newberry, there was an unusual flood of telegraphic messages, between 300 and 400 coming in and going out of the Newberry office, so much so that one or two assistant operators and an extra messenger boy were employed. The messengers were kept very busy all day delivering messages. The managing operator, Miss Dean, had lost all her property in the fire, but remained at her post. The message in question was promptly received at the Newberry office at 4:10 p. m., and at 8:15 p. m. was reported undelivered to the Whitmire office, with request for a better address, to which no answer was received. At that time plaintiff had returned to her residence, several miles from Whitmire, and so far as appears no better address was left at the Whitmire office. The message on its receipt was promptly given to Carl Epting, the extra messenger boy. He brought it back to the office two or three times during that afternoon, and was each time sent out again with the message and others for delivery. The operator had taken charge of the office several months before, but did not know Mr. George W. Pearson or his address, nor did the messenger boy in charge of this message know him or his address, although it appears that Mr. Pearson was an old citizen and resident of the town, living within several blocks of the telegraph office. The regular messenger boy, Ellison Adams, knew Mr. Pearson, and, if the message had been placed in his hands, he stated that he would have delivered it. When the operator, Miss Dean, was asked why she did not turn over the message to the regular messenger boy, she stated as soon as the extra messenger brought back the message she would start him out again, and in the meantime the regular messenger boy had gone out of the office. The messenger Epting testified that he had made three efforts to find Pearson, that he inquired at the hotels and examined the register, inquired at the postoffice and of other persons whose names he could not mention.

While the evidence did leave room for an inference that greater diligence would probably have resulted in a delivery of the message and so support a verdict for compensatory damages, there was no reasonable foundation for an inference that there was a wilful or wanton neglect of duty warranting punitive damages, in view of the undisputed evidence of effort to deliver and the extraordinary circumstances of difficulty attending the conduct of defendant's business on that occasion.

The judgment of the Circuit Court is reversed.