August 28, 1912. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, Rosa Brown, through the wrongful acts of the defendant, in failing to deliver the following telegram:
"Summerville, S.C. January 22, 1908. Mrs. W.M. Brown, No. 72 Canal Street, S.W., Washington, D.C. Come at once. Your sister died this morning. Frederika Alston."
The jury rendered a verdict in favor of the plaintiff, for seven hundred and fifty dollars for negligence, thus eliminating *Page 360 the question, as to the right of the plaintiff to recover punitive damages.
The appeal is from the refusal of his Honor, the presiding Judge, to grant the motion for nonsuit, and the direction of a verdict; also from his refusal to charge certain requests, and from certain parts of his charge, alleged to be erroneous.
This is the second appeal in this case — the first being reported in 85 S.C. 495.
The appellant's exceptions will be incorporated in the report of the case.
The first exception cannot be sustained, for the reason that even if the testimony therein mentioned, was immaterial and irrelevant, the appellant has failed to show, that it was prejudicial to its rights.
The second exception was withdrawn.
All the other question presented by the exceptions herein, were involved upon the former appeal, and were determined adversely to the contention of the appellant. They were therefore subject to the doctrine of resjudicata, and, even if the rulings then made were erroneous, they could not be corrected in this case. Jones v. Ry., 65 S.C. 410, 43 S.E. 884.
These questions were also presented, upon a petition for a rehearing on the former appeal in this case, but were again decided against the petitioner, and, the petition dismissed. Again they were affirmed in the case ofHeath v. Tel. Co., 87 S.C. 219, 69 S.E. 283, and still again in the case of Boyd v. Tel. Co., 88 S.C. 518,71 S.E. 28. In the last mentioned case the Court had under consideration the question, whether the addressee of a telegram, in a State which has not a mental anguish statute, has the right of recovery in this State, for delay in delivering a message sent from this State to that, without reference to where the delay occurred; and ruled that he did have such right. *Page 361
In reversing the Circuit Judge this Court merely said: "This question has undergone judicial investigation so recently that we deem it only necessary to cite the cases ofBrown v. Tel. Co., 85 S.C. 495, 67 S.E. 146, and Health v. Tel. Co., 87 S.C. 219, to show that the exceptions raising this exception, must be sustained."
These exceptions are therefore overruled.
This case has been taken by writ of error to the UnitedStates Supreme Court.