
    6783
    McDOWELL v. WESTERN UNION TEL. CO.
    
      Ruled by case of Amos v. Western Union Tel. Co., post, 259.
    Before Purdy, J., Spartanburg,
    May, 1907.
    Affirmed.
    Action by W. A. McDowell against Western Union Telegraph' Company. Prom judgment for defendant on verdict ordered by Court, plaintiff appeals.
    
      Mr. Stanyarne Wilson, for appelant,
    cites: 70 S'. C., 422; 77 S. C., 179.
    
      Mr. George H. Fearons 'and John Gary Fvcms, contra.
    Argument reported in Amos case.
    
      March 2, 1908.
   The opinion of the Court was. delivered by

Mr. Justice Gary.

This is an action for damages alleged to have been sustained by the plaintiff as a result of the defendant’s failure to deliver promptly the following message, delivered by the plaintiff to the defendant at Louisville, Ky., to be transmitted to Asa Smith, at Pacolet, S. C.: “Collect money at bank. Sick at Gray Street Infirmary. Come.”

Asa Smith is the brother-in-lawl of the plaintiff, which fact was known to the defendant.

There are no allegations in the complaint that there were tender and affectionate relations existing between the plaintiff and his brother-in-law, nor was there any testimony tending to’ show that the defendant had notice of such relations.

When the plaintiff wias asked whether he had suffered mental anguish on account .of the failure to malee prompt delivery >of the telegram., the defendant’s attorney obj ected to the testimony.

In sustaining the objeotion, his Honor, the presiding judge, used this language: “If the telegraph agent at Paco let knew that 'he was a brother-in-law of the defendant, there is nothing in the telegram to notify the telegraph aigent that Mr. Smith was a close friend, or a personal friend, or oould be of any particular aid or comfort to the sick, or a man of peculiar skill, nor is there anything in. the telegram to notify the telegraph company that the sender of it, 'the plaintiff, was then contemplating undergoing an operation for appendicitis and especially needed the services of his brother-in-law. Nor is there anything to notify the telegraph company that he bad a peculiar skill to render peculiar assistance, and it seems to m|e, there is a fatal lack of notice -to. the telegraph company, from which, damages would! necessarily be inferred. I do not see howl this testimony can be. admissible under that state of facts.”

The presiding judge directed a -verdict for the defendant, and this ruling is assigned as error.

The ruling of the presiding judge is sustained -by the case of Amos v. Tel. Co., following.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.  