I concur in the opinion that the portions of the fourth and sixth paragraphs of the complaint italicized in the opinion of Mr. Justice Gary should be struck out, not because they are allegations of probative matter, but because they are entirely irrelevant, and proof of them should not be admitted.
These allegations set up special consequential damages. Damages beyond the amount of the check can not be recovered, because there was no notice on the face of the telegram, or otherwise, that anything more than the amount of the check was involved in prompt and accurate transmission of the message. Mood v. Tel. Co., 40 S.C. 524,19 S.E., 67; Capers v. Tel. Co., 71 S.C. 29, 50 S.E., 537; Jones v.Tel. Co., 70 S.C. 540, 50 S.E., 198; Rogers v. Tel. Co., *Page 315 72 S.C. 290, 51 S.E., 773; Key v. Tel. Co., 76 S.C. 301;Traywick v. Ry. Co., 71 S.C. 82, 50 S.E., 549; Wesner,etc., Co. v. R.R. Co., 71 S.C. 211, 50 S.E., 789; Wehman v. Ry. Co., 74 S.C. 286; McKerall v. R.R. Co., 76 S.C. 338.
The allegation as to the plaintiff's humiliation is irrelevant because the plaintiff can not recover damages for mental anguish for failure to transmit properly a business message. Capers v. Tel. Co., 71 S.C. 29, 50 S.E., 537.
I am unable to discern any good reason for striking out the italicized portion of the fifth paragraph of the complaint. It was by no means unimportant for the plaintiff to allege, if the telegram had been correctly transmitted it would have instructed him what disposition to make of the draft, and thus would have enabled him to collect the debt represented by the draft. Indeed, without some allegation that the draft would have been presented and paid, the complaint would have been fatally defective, for there would have been no damage to the plaintiff growing out of the mistake in the telegram, unless such mistake prevented the collection of the draft. Wallace v. R.R. Co., 34 S.C. 62; 12 S.E., 815;Capers v. Tel. Co., supra.
It seems clear there was no support for defendant's demurrer which was interposed on the ground that the complaint failed to state any cause of action. The defendant was bound to know from the terms of the telegram that it was authority to the plaintiff to draw on the Peoples Bank for a sum of money, and that in the course of business the failure to transmit accurately might result in the loss of the amount for which plaintiff was authorized to draw, whatever that amount happened to be. The telegraph company, therefore, took the risk of loss from its negligence to the extent of the amount of the draft plaintiff was authorized to make. The defendant's position that the telegram did not mean the bank would pay the draft is untenable. Obviously, by the words used the bank meant to say to the plaintiff, in a short business way, if he would *Page 316 draw on the bank for the amount of Coleman's check with the check attached, the bank would pay the draft. It may be the bank's promise was without consideration and, therefore, at no time legally available to plaintiff against the bank; nevertheless, if the plaintiff should be able to prove on the trial the bank would have voluntarily paid the draft if it had been promptly presented in response to the telegram, and thereafter refused to pay it because of delay in presentation, and that the defendant's negligence brought about the delay, the plaintiff, in that event, would be entitled to a verdict for the amount of the draft. This conclusion accords with the principles of Hayes v. Tel. Co., 70 S.C. 16,48 S.E., 608, 67 L.R.A., 481, and Bowie v. Tel. Co., 78 S.C. 424, and the authorities therein cited.
No opinion is expressed as to what would be the measure of the plaintiff's damages, if any, in the event it should appear the bank was legally bound to pay the draft, when it was actually presented notwithstanding the delay. The demurrer does not raise that question but, on the contrary, rests on the proposition that the bank was never legally liable to pay the draft.
In my opinion the motion to strike out should be granted so far as it relates to the fourth and sixth paragraphs of the complaint, and denied so far as it relates to the fifth paragraph; and the demurrer should be overruled.