The Court, in the case of Stewart v. Tel. Co., 93 S.C. 119; 76 S.E., 111, adverted to the position taken by counsel for the telegraph company that the mental anguish statute was unconstitutional, in that "it denies to telegraph companies alone the benefit of the general rule, of which all other litigants are allowed the advantage, that a plaintiff cannot recover special damages, without alleging and proving that the defendant had notice, at the time of making the contract, of the circumstances out of which such damages might arise, in the event of its breach"; and in answering the objection of the unconstitutionality of the statute say:
"The Statute does not abolish the rule altogether, in its application to telegraph companies, but only with respect to that class of messages which carry on their face what the legislature deems to be sufficient notice to the company, when the contract is made, that special circumstances exist, to wit, sickness or death, out of which special damages may arise, if the contract is broken." *Page 250
This doctrine is approved in the Galloway case, 101 S.C. 159;85 S.E., 309, where the Circuit Judge (Hon. Geo. W. Gage, later an Associate Justice of this Court), said:
"According to the last deliverance, the Stewart case, the telegraph company is not liable for damages (special?) unless the telegram shows on its face that it relates to sickness or death, unless there be proof aliunde that the telegraph company did have that notice."
The Stewart case is reaffirmed also in Graham v. Tel.Co., 93 S.C. 173; 76 S.E., 200; Bush v. Tel. Co., 93 S.C. 176;76 S.E., 197.
The Cameron case, 90 S.C. 503; 74 S.E., 929, decided prior to the Stewart and Galloway cases, held that the telegraph company was liable in special damages whether the telegram showed upon its face that it related to sickness or death, or whether it had notice aliunde of the special circumstances.
As Judge Gage held: "The two cases (Cameron andStewart) are to my mind inconsistent."
I think that it is inevitable that they should be so held. It follows that the adoption of the principles declared in the Cameron case, necessarily, from the decisions in theStewart and Galloway cases, would render the statute unconstitutional in this respect.