Butler v. Telegraph Co.

April 1, 1903. The opinion of the Court was delivered by Statements of facts. — The allegations of the complaint material to the consideration of the questions raised by the exceptions are as follows:

"2. That on the 3d day of April, 1899, one J.B. Spivey, the son-in-law of the plaintiff, presented to and filed with the defendant at its offices in the said town of Abbeville, the following message, to wit: `Mr. H.F. Jumper, No. 709 Lumber street: Wife very ill, come at once. Let parents and G.P. Spivey know. J.B. Spivey.'

"3. That the defendants at said time and place received said message and promised promptly to transmit by telegraph and deliver the same to the said H.F. Jumper, at his said address in the city of Columbia, and that in consideration thereof then and there prepaid to the defendant its regular charges.

"4. That at said time, the wife of said J.B. Spivey, mentioned in the said message, was critically ill; that the plaintiff is her father and one of the parents mentioned in the said message, and that the same was presented to and received by the defendant to be transmitted and delivered as aforesaid, for the plaintiff's benefit; of all of which the defendant was apprised at the time of the presentation of said message to it, as aforesaid, and that plaintiff has on his part in all respects fully complied with the terms and conditions of said agreement.

"5. That although the said H.F. Jumper was at his residence, at No. 709 Lumber street, in said city, during the whole of the said third day of April, when said message could and ought to have been delivered to him, and all of the following day, and although his said address was within easy reach of the defendants, and within its regular delivery limits in said city, the said defendant wilfully, wantonly and grossly, negligently failed promptly to deliver said message, and the same, through the wilful, wanton and gross negligence of the defendant aforesaid, was not delivered nor offered to be delivered to the said H.F. Jumper, or any one for him, until the 7th day of April, 1899, upon demand then being made by the said H.F. Jumper therefor at defendant's office in the said city of Columbia, and that in the meantime, on the night of the 5th day of April, 1899, the said wife of the said J.B. Spivey died of said illness, and her remains were forwarded by railroad to Killian's, in the said county of Richland, for interment.

"6. That by reason of defendant's said wanton, wilful and grossly negligent failure promptly to deliver said message as aforesaid, the plaintiff was deprived of seeing and being with his said daughter before her said death, and of accompanying her remains from the said town of Abbeville to said Killian's, and of providing for their proper reception upon their arrival at their destination at Killian's; was subjected to great mental anguish and suffering, and suffered damage in the sum of one thousand nine hundred and fifty dollars.

"7. That on the 31st day of May, 1899, the plaintiff notified the defendant of the matters and things hereinabove set forth, and presented his claim in writing to said defendant for said sum of by reason thereof; but that defendant has failed to pay the plaintiff said sum, or any part thereof, and has wholly ignored plaintiff's said claim.

"Wherefore, the plaintiff demands judgment against the defendant for the sum of one thousand nine hundred and fifty dollars, and for the costs and disbursements of this action."

The jury rendered a verdict in favor of the plaintiff for $650.

Opinion. — The first seven exceptions, which will be reported, raise questions that have been recently decided by this Court in the case of Young v. W.U.Tel. Co., 65 S.C. 93, and must be overruled.

The eighth exception is as follows: "Eighth. Because his Honor erred in refusing the motion of the defendant for a new trial; whereas, the Court should have granted said motion on the grounds upon which it was based, and especially upon the grounds that no actual or compensatory damages were proved, and the verdict could be explained only upon the assumption that the jury intended to inflict punitive damages; and the Court should have granted a new trial, for the reason that a verdict awarding punitive damages against the defendant was illegal, in that there was no evidence of whatever character submitted to the jury from which it could be deduced that the defendant or its agents, in failing to deliver the telegram in question promptly, acted wilfully, intentionally or wantonly, or with such a frame of mind as would make it liable for punitive damages."

The allegations of the complaint are appropriate to an action for punitive damages. In the case of Meyers v.Southern Ry. Co., 64 S.C. 514, the principle is announced that if the defendant's agent consciously invades the plaintiff's rights his conduct is wilful or wanton and such as would subject the defendant to punitive damages. In the case of Griffin v. Southern Ry. Co., 65 S.C. 122, the Court says: "It is frequently difficult to tell whether an act of wrong is attributable to wilfulness or mere inadvertence, which is the foundation of negligence, and whenever the facts are susceptible of more than one inference, it is peculiarly the province of the jury to determine such question." These cases are cited with approval in the recent case of Marsh v. W.U. Tel. Co. There was testimony tending to show that the defendant's messenger boy did not go to the house in which H.F. Jumper lived when the message was handed to him to be delivered to H.F. Jumper. If he failed to go to the house and such failure was intentional, the plaintiff was entitled to recover punitive damages. These facts were properly submitted to the jury for its determination.

The ninth exception is as follows: "Ninth. Because it is respectfully submitted that there was no evidence before the jury which justified a verdict against the defendant for actual damages in any sum; and there was no evidence before the jury of any wilful, intentional or wanton conduct, or of a frame of mind on the part of the defendant or its agents, which would justify a verdict for punitive damages, and, therefore, the verdict should have been set aside by his Honor, on the motion for a new trial."

Whether there was any testimony to sustain a verdict is a question of law, but whether the verdict is justified by the testimony presents a question of fact, which cannot be considered by this Court.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.