I think the judgment of nonsuit should be set aside for reasons different from those stated in the opinion of Mr. Justice Gary. The main allegation of the complaint, with respect to damage for delay in the delivery of the telegram, is that the plaintiff was thereby "greatly distressed and worried." This allegation must be eliminated, because the telegram related to the employment or an attorney, distinctly a business matter, and worry and disappointment in business affairs do not fall under the mental anguish statute. Capers v. Telegraph Co., 71 S.C. 29,50 S.E., 537. The evidence admitted over defendant's objection that the plaintiff, when he received no reply to his dispatch to Mr. deLoach, had taken his horse from his field and driven six miles to procure the services of another attorney, cannot serve as an element of actual damages to warrant this Court in reversing an order of nonsuit. No *Page 247 such damage was alleged in the complaint, and the evidence with respect thereto was clearly incompetent. It seems to me illogical for this Court to reverse a judgment of nonsuit on the ground that evidence objected to and incompetent tended to show that the plaintiff had some other cause of action than that which he undertook to state in his complaint.
There was, nevertheless, a good ground for sustaining the appeal from the order of nonsuit. By reason of the delay of the defendant's agent in delivering the telegram, the purpose of the plaintiff in using the defendant's wires as a means of communication was entirely defeated. Upon proof that the delay having this result was due to defendant's breach of its duty to use due diligence, the plaintiff was entitled to recover as actual damages the nominal amount paid the defendant for the service of prompt delivery, undertaken on plaintiff's behalf and not performed. The payment for this service was alleged in the complaint and testified to by the plaintiff. The nominal damage was sufficient to support a finding of punitive damages on proof that the delay was due to willfulness or wantonness.Arial v. Telegraph Co., 70 S.C. 418,50 S.E., 6; Doster v. Telegraph Co., 77 S.C. 56, 57 S.E., 671. There was evidence tending to show a wilful disregard of duty on the part of the agent of the defendant at Ridgeland, that evidence being that the agent held the telegram addressed to the plaintiff for twenty-four hours without effort to deliver, though twice reminded by an assistant of his duty to deliver.
MR. JUSTICE HYDRICK concurs in this opinion. *Page 248