This was an action brought by Annie P. Oxner, plaintiff, against the Western Union Telegraph Company, defendant, under the following circumstances described in the complaint and adduced in the plaintiff's testimony: Mrs. Annie P. Oxner on the 30th day of March, 1907, was engaged in teaching school, and boarded with the family of Mr. George F. Abrams, about four miles distant from the town of Whitmire, in Newberry *Page 514 county, S.C. She had been alarmed by hearing that a very destructive fire had occurred in the town of Newberry, S.C., on that day, and that a large portion of the town was burned up, and that her parents, Mr. and Mrs. George W. Pearson, with whom there was at that time her only two children, infants of nine and four years, resided in the said burnt district. That Mrs. Oxner applied to Mr. George F. Abrams to carry her to the town of Whitmire, where she sent the following telegram to her said father, Mr. George W. Pearson: "Are you safe? Answer. Annie P. Oxner." That Mrs. Oxner paid the usual price for sending the telegram, 25 cents, and remained in the town of Whitmire in order to receive the answer. That the said telegram was sent by the telegraph company and received at 10 minutes past 4 o'clock by the said company; but, although at that early hour in the afternoon, no answer was sent. That, although the said George W. Pearson had lived for 41 years at a distance of only three or four squares from the spot where the telegram was received, no service was made upon him on the 30th day of March, 1907, or at any other time by the said defendant telegraph company. That no reply of any kind was ever served upon the plaintiff, although she waited for hours therefor, only leaving the town of Whitmire in time to reach her home, four miles distant, before night of that day. That she suffered great mental anguish because of said wanton, wilful, and grossly negligent failure to deliver the said telegram. She claims damages therefor in the sum of $1,999.
The defendant by its answer denies all the allegations in the complaint, except that the defendant was a corporation and had its regular offices in the said towns.
The cause came on for trial before his Honor, Judge Ernest Gary, and a jury, at the November term, 1907, of the Court of Common Pleas for Newberry county. The jury rendered a verdict in favor of the plaintiff, which, after a motion for a new trial being refused, judgment was entered *Page 515 therefor; and from this judgment the defendant now appeals upon several grounds, which we will consider in their order.
The exceptions are as follows:
(1) "Because his Honor erred in allowing, over objection of defendant's attorneys, Mr. George W. Pearson to answer the following question: "The plaintiff here, Mrs. Oxner, alleges in her complaint that she forwarded the following telegram: "Mr. George W. Pearson, Newberry, S.C. Are you safe? Answer. Annie P. Oxner." If such a telegram had been received by you from your daughter, would you or not have answered?' (a) In that there was no allegation in the complaint that Mr. Pearson, the sendee of the telegram, would have answered. (b) In that the Court could not take judicial notice or make judicial inquiry as to what the sendee of the telegram would or would not do upon its receipt. (c) In that plaintiff has never proved such telegram was ever filed with the defendant company for transmission and delivery to Mr. George W. Pearson.
(2) "Because his Honor erred in not granting a nonsuit where there was no testimony to show that the defendant had broken the contract alleged in the complaint, in that the plaintiff failed to prove that the telegram set out in the complaint and the basis of said contract was ever delivered to defendant for transmission.
(3) "Because his Honor erred in not granting a nonsuit when plaintiff failed to show the contents of the telegram set out in the complaint, and which was the sole basis of the contract alleged by her, and the sole basis of the damages she claimed to have sustained, and thereby failed absolutely to prove any such contract with the defendant, as was set up in the complaint.
(4) "Because his Honor erred in not granting a nonsuit when the plaintiff failed to show by the evidence that she had any contract with the defendant for the transmission and delivery of the telegram set out in the complaint. *Page 516
(5) "Because his Honor erred in not granting a nonsuit after holding that the plaintiff had failed to make out a case for damages for mental anguish, and in submitting the case to the jury to say whether the plaintiff had received actual damages by reason of breach of contract in that this was a case of tort for mental anguish arising out of breach of contract, and was not a case of simple breach of contract.
(6) "Because the presiding Judge erred in holding that this was a suit for breach of contract as well as a suit on tort, and that plaintiff was entitled to have the case submitted to the jury to determine whether there was a breach of contract, and whether plaintiff had been damaged thereby.
(7) "Because his Honor erred in not granting a new trial on the ground that the testimony was not sufficient to support the verdict, in that: (a) The verdict was for punitive damages entirely, and there was no testimony of wilfulness, wanton or gross negligence. (b) The verdict, being for punitive damages entirely, and there being no testimony of wilfulness or wantonness or from which wilfulness or wantonness could be inferred, except the testimony of long delay in delivering the telegram, and this being explained by undisputed evidence, could not support an inference of wilfulness or wantonness and a verdict for punitive damages.
(8) "Because his Honor erred in not granting a new trial on the ground that there was no testimony to show that the telegram, set out in the complaint, was ever delivered to the defendant for transmission.
(9) "Because his Honor erred in not granting a new trial on the ground that there was no testimony to show that there was any contract between plaintiff and defendant for the transmission and delivery of the telegram set out in the complaint, which is the basis of this action.
(10) "Because his Honor erred in not granting a new trial on the ground that the verdict of the jury was for punitive *Page 517 damages alone, and there could be no punitive damages without actual damages.
(11) "Because his Honor erred in not granting a new trial on the ground that the verdict of the jury is excessive and unwarranted by the testimony, in that there was no testimony to show a contract between plaintiff and defendant for the delivery of the telegram set out in the complaint, and there was no testimony to show wilfulness or wantonness on the part of the defendant."
First. We agree with the Circuit Judge that it was competent for Mr. George W. Pearson to answer the question here excepted to; Mrs. Oxner having alleged in her complaint that she sent to her father a telegram. But the answer to this question is not material, having reference to a question of mental anguish; his Honor having eliminated mental anguish from the decision of the case. We overrule this exception.
Subdivisions a, b, and c. Having decided that the answer to this question was not material, these subdivisions are also overruled.
Second, Third, Fourth, and Fifth. The Circuit Judge held that a nonsuit was proper so far as the question of mental anguish was concerned, and granted a nonsuit to that extent; but he rightly left to the jury the question of compensatory damages and breach of contract, as the undisputed testimony shows that the said telegram has never been delivered, although received, and 25 cents paid to the defendant by the plaintiff, which was admitted by the defendant's witnesses. These exceptions are overruled.
Sixth. It was in proof that the plaintiff had delivered to the defendant a dispatch for transmission, and the defendant admitted that fact. Of course, therefore, the question of breach of contract was admitted, and the question of what amount of damages the plaintiff had received was a subsisting question before the jury. The Judge did not answer what the jury should find, but left it entirely with them, and *Page 518 the jury have answered by their verdict. This exception is overruled.
Seventh, Eighth, Ninth, Tenth, and Eleventh. As we have before held, there is no doubt that the plaintiff paid the defendant 25 cents as the cost of the telegram sent; and it is further admitted in the testimony of the defendant's agent that she received the telegram, and has not delivered the same at any time, although Mr. Pearson has been a resident of this city for over 40 years, and a freeholder for about 21 years. George W. Pearson was the addressee of the telegram, whatever it was, and the defendant admitted that it never delivered such telegram to the sendee, or the telegraph company made no report to the plaintiff at any time since.
The question was, therefore, left open as to the motive of the defendant by such conduct. These exceptions are overruled.
The judgment of this Court should be that the judgment of the Circuit Court be affirmed.