May 12, 1915. The opinion of the Court was delivered by This is an action for damages alleged to have been sustained by the plaintiff through the wrongful acts of the defendant, in failing to deliver the following message from his wife at Richmond, Va., on the 18th of February, 1910: "To J.R. Galloway, Hartsville, S.C.: Will leave Richmond seven o'clock tonight. Meet me in Florence."
The jury rendered a verdict in favor of the plaintiff for one hundred dollars actual damages, and one hundred dollars *Page 167 punitive damages, and the defendant appealed upon exceptions, which will be reported.
The first question that will be considered, is whether there was any testimony tending to show that the defendant had notice when the telegram was delivered to it for transmission that Mrs. Galloway was an invalid.
The message was telephoned to the defendant by Miss Rosa Hancock, superintendent of Johnson-Willis Sanitarium, where Mrs. Galloway was under treatment as an invalid. Miss K.M. Ellis, who was in the employment of the defendant at its office in Richmond, received the message and wrote on it the words "Johnson-Willis," so as to indicate the residence of the sender of the telegram.
His Honor, the presiding Judge, charged the jury as follows:
"The telegram reads: `Will leave Richmond seven o'clock tonight. Meet me in Florence,' and to the left is `Johnson-Willis.' You heard the testimony of the witnesses on the stand about what that means. You heard the testimony of the young lady operator at Richmond, and you heard the testimony of Mrs. Galloway, and I leave it to the jury to say whether or not, from that testimony, and from this telegram, the operator at Richmond ought to have known that there was a sick woman at the hospital, and this telegram was about her. If you find that issue for the telegraph company, that they had no such notice, then they are not liable. If you find from the preponderance of the testimony that they ought to have had such notice, that the words on the telegram `Johnson-Willis,' and from the testimony of other witnesses, that the operator ought to have known that this lady was at the hospital, and that the probability was that she was sick, then the telegraph company had notice, and then they would be liable."
The testimony tends to show that the defendant had knowledge of facts sufficient to put it on inquiry, which, if *Page 168 pursued with due diligence, would have led to notice of the fact that Mrs. Galloway was an invalid at a hospital.
The issue of notice was, therefore, properly submitted to the jury.
The next question is whether there was any testimony tending to show that the plaintiff was entitled to punitive damages.
The explanation given by the defendant for its failure to deliver the message is satisfactory, and shows that the plaintiff was not entitled to punitive damages.
The next assignment of error is, because his Honor, the presiding Judge, erred in allowing the plaintiff to testify that he had suffered mental anguish on the ground that this was a question to be determined by the jury, from the facts and circumstances in the case.
It is true the jury must determine whether the plaintiff suffered mental anguish from the facts and circumstances, but there is no good reason why they should not also consider the testimony of the plaintiff, as to his suffering.
The authorities cited by the respondent's attorneys show that this assignment of error cannot be sustained.
The next question is whether there was error in permitting Mrs. Galloway to testify in reply, that she would not have left Richmond, at the time mentioned in the telegram, if she had known that it would not be delivered to her husband.
The appellant has failed to satisfy us that the presiding Judge's discretion was erroneously exercised.
The propositions which the presiding Judge charged, as set forth in the seventh and ninth exceptions, merely mean that a telegraph company should not lead a sender to believe that the message will be delivered promptly, when it knows, or should know, that circumstances will prevent a prompt delivery.
*Page 169In this there was no error.
The eighth exception cannot be sustained, for the reason that there was no necessity for construing the telegram, but the words "Johnson-Willis" therein contained, were properly considered by the jury in connection with the other testimony in determining whether the defendant had notice of Mrs. Galloway's physical condition.
The charge of the presiding Judge is sustained by the cases of Holliday v. Pegram, 89 S.C. 73, 71 S.E. 367, andWatson v. Paschall, 93 S.C. 537, 77 S.E. 291.
The four members of the Court who participated in the hearing of the appeal herein, being agreed that punitive damages cannot be recovered, the judgment as to such damages is reversed, but the Court being equally divided upon the question, whether plaintiff is entitled to recover actual damages, the judgment for such damages is affirmed.
MR. JUSTICE WATTS concurs in the opinion delivered by the Chief Justice.