November 7, 1911. The opinion of the Court was delivered by This appeal is from a judgment of four hundred dollars recovered by the plaintiff as damages for mental anguish caused by the failure of the defendant company to transmit and deliver promptly a telegram announcing the illness of plaintiff's aunt. In passing on defendant's first position that the Circuit Judge should have held that there was an entire failure of evidence of wilfulness or wantonness, and also an entire failure of evidence of any actual damages suffered by the plaintiff, it becomes necessary to state the evidence with some detail.
Elbert F. White presented for transmission to the defendant's agent at Abbeville, about ten o'clock a. m. on Sunday, February 28th, 1909, this message: *Page 569
"Time filed 10:20 a. m. Check 10, Paid 25.
"Mrs. W.H. Busbee, Clearwater, S.C.: Aunt Aggie and Aunt Sallie are in dying condition. Come. Elbert."
The agent examined the list of the company's offices, but not with sufficient care to discover that Clearwater was on the list, and informed White that there was no such office. Thereupon White directed that the message should be sent "via Bath," and paid fifty cents for the extra charge of sending a message from Bath to Clearwater. When the message reached Augusta, Ga., the relay office, the agent there asked the Abbeville agent why the message was not to be sent direct to the Clearwater office. The Abbeville agent, having thus discovered his error in telling White that there was no office at Clearwater, authorized the Augusta agent to send the message direct to Clearwater. The Abbeville agent testified that he made some effort to find White and return the extra charge of fifty cents, but was not successful, and the money was never returned.
The message was received by the Augusta office a few minutes after ten o'clock. The Sunday office hours at Abbeville, Bath and Clearwater were from 8 to 10 a. m., and from 4 to 6 p. m. As the telegram was not received by the defendant's Augusta agent until after the Sunday morning hours at Bath and Clearwater, no negligence can be imputed to it for not having agents in those offices to receive the message before four o'clock in the afternoon.Bonner v. Tel. Co., 71 S.C. 303, 51 S.E. 117; Harrison v.Tel. Co., 71 S.C. 386, 51 S.E. 119; Bowen v. Tel. Co.,77 S.C. 127, 57 S.E. 674. All day Sunday both before and after four o'clock in the afternoon, frequent calls were made by the Augusta office on the Clearwater office, but the agent was either absent or neglected to answer. The Augusta agent made no effort to deliver the message through the Bath office. The message was taken by the Clearwater agent at 8:47 on Monday morning and delivered to Mrs. Busbee about 9:40. *Page 570
The defendant owed to the plaintiff the duty to have an agent at the Clearwater office to receive the message for her during its office hours from four to six p. m. Evidence of the entire and unexplained failure of the Clearwater agent to perform this obvious duty was evidence from which an inference of a conscious failure to perform a known duty could be reasonably inferred. In addition to this, we think the inference of total disregard of an obvious duty might well be drawn from the failure of the Augusta agents of defendant to make any effort to send the message through the Bath office when no response came from the Clearwater office. The message showed on its face great urgency; the mark on it for special delivery through the Bath office indicated that the special charge had been paid; and it might with reason be inferred that any regard for the obligation assumed would have resulted in an effort to deliver the message through the Bath office. No doubt the defendant's Augusta agent was right in trying to save for the sender the extra charge and expedite the delivery of the message by sending it direct to Clearwater as the sender intended it should be sent until misled by the Abbeville agent; but it was none the less his duty to try the Bath office when the Clearwater office failed to respond. The Circuit Judge was, for these reasons, right in submitting to the jury the question of wilful or reckless disregard of duty on the part of the defendant.
It is equally clear that there was evidence to go to the jury on the question of damages. The evidence does show, as defendant's counsel contends, that even if the telegram had been promptly delivered to the plaintiff at 4 o'clock Sunday afternoon she could not have reached the bedside of her aunt before her death; but it also tends strongly to show that the plaintiff could have reached Abbeville in time to attend the funeral. She alleged and testified that she was attached to her aunt by strong ties of affection from very intimate association, and it was for *Page 571 the jury to decide whether in view of such association and affection mental anguish would result from being unable to attend the funeral.
The defendant's counsel submitted the following request to charge: "Telegraph messages are accepted for transmission, subject to the reasonable rules and regulations of the telegraph company, and if the evidence shows that the defendant company had reasonable office hours during which to deliver telegraph messages in the towns of Clearwater and Bath, it was not by law compelled to deliver messages outside of said hours." After reading the request to the jury the Circuit Judge said: "I charge you that so far, and I add this to it — unless through its authorized agent, acting within the scope of his authority, he assumes for valuable consideration to do otherwise." The addition to the request, it is true, was irrelevant, for there was no evidence whatever that the defendant had undertaken to deliver the message out of office hours. But a new trial should not be granted merely because of an irrelevant instruction, unless the record furnishes good reasons to suppose that the verdict was affected by it. We find no such reason in the record in this instance, and the exception must be overruled.
The comment of the Circuit Judge in charging the fourth request of defendant's counsel gives rise to a point of some difficulty. The request was as follows: "That where a party is deprived of being with a relative during that relative's dying moments by reason of the delay in the delivery of a telegram, and the relationship between the party and said relative is that of niece, proof of such relationship is not of itself sufficient to raise a presumption of mental anguish, and in order to enable such party to recover damages for mental anguish on account of such deprivation, it must affirmatively appear from the evidence that special relations of tenderness and affection existed between the plaintiff and the deceased, and that at *Page 572 the time the message was accepted by the telegraph company for transmission and delivery adequate notice was given the company of such special relations." The presiding Judge, after reading the request, said: "I charge you that. In other words, Mr. Foreman and gentlemen of the jury, if a niece or a nephew should go and send a telegram, and the fact of that relationship was not known to the operator, then you see the law that I have given you would not apply, but that relationship must be known in order to bind the company — in order to be able to recover exemplary or punitive damages that relationship must be known to the company."
The error of the Circuit Judge in his interpretation of the request is so obvious that it must have been manifest to the counsel for defendant at the time it was due to inadvertence. We think it must be imputed to the counsel as a waiver of the obvious mistake of the presiding Judge that he failed to call attention to it. This conclusion is strengthened by the fact that at the close of the charge the presiding Judge asked the question, "Is there anything else, gentlemen?" and counsel for defendant submitted an additional request to charge, without referring to this inadvertence.Worthy v. Jonesville Oil Mill, 77 S.C. 69, 57 S.E. 634;Anderson v. S.C. G.R.R. Co., 81 S.C. 1, 61 S.E. 1096.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.