Betts v. Western Union Telegraph Co.
167 N.C. 75
N.C.
1914
Check Treatment
WalkeR, J.,

after stating the case: There was evidence that Ovey J. Betts had suffered mental anguish, and we think there can be no serious question raised on this branch of the case. There was testimony from which the jury could reasonably have inferred that Ovey J. Betts, if he had received the message sent by defendant’s line, would have left at once for home and notified his brother, or some relative there, of his coming; and as his brother, Raymond Betts, would have postponed the funeral, he would have had the consolation of attending it, which was lost by the defendant’s negligence. It seems that .Clifton was his favorite brother, and the jury might well have found that he suffered mental anguish, as he was deprived of the privilege of paying this tribute to his memory by taking part in these last sad rites. As to Raymond Betts, we are also of the opinion that there is evidence from which the jury may reasonably have drawn the conclusion that he had endured mental anguish, being deprived of 'the presence, society, and consolation of his brother at the funeral, and not knowing why his message was unanswered.

Discussing a similar question in Bright v. Telegraph Co., 132 N. C., 317, this Court said: “A .woman suddenly bereft of her husband, and who has no father or other relative or friend to whom she can turn in her distress, except the uncle of her husband, might well call upon him for consolation and assistance, especially when, as is abundantly shown by the evidence in this case, he was her husband’s nearest living relative and had raised and educated him and was ‘devoted to her husband and herself,’ and stood towards them in the place of a parent. She had every right to expect that as soon as the sad news of the death of her husband had reached him, he would come at once to her and give her that comfort, consolation, and assistance which she sorely needed. If he was not her father, he entertained for her all of the tender regard and affection of a parent, and was as much interested in her welfare as if he had been her father, and she could therefore reasonably expect that he would do under the circumstances precisely what her father would have done if he had been living.” And to the same general effect is Cashion v. Telegraph *79Co., 123 N. C., 267: “We do not mean to say that damages for mental anguish may not be recovered for the absence of a mere friend, if it actually results; but it is not presumed. The need of a friend may cause real anguish to a helpless widow, left alone among strangers with an infant child and the dead body of her husband. In the present case the plaintiff seems to have received the full measure of Christian charity from a generous community, but it may be that she did not expect it, and looked alone to her brother-in-law, whose absence she so keenly felt. If so, she may prove it.” ' As substantially said by Justice Brown in Harrison v. Telegraph Co., 143 N. C., 147, the testimony in this case, if believed, tended to prove something more than mere disappointment and should be submitted to the jury, that they may find whether or not mental anguish was really suffered.

But defendant earnestly contends that the face of the message furnished no notice to the company that mental anguish would result. We need not pause here to consider the distinction between actions in tort and those in contract, with a view of determining what damages may be recoverable. Penn v. Telegraph Co., 159 N. O., 306. Numerous decisions of this Court are to the effect that the company must be informed of the nature of the message, either by its words or by facts brought to its attention extraneously. Williams v. Telegraph Co., 136 N. C., 82; Harrison v. Telegraph, Co., 143 N. C., 147; Suttle v. Telegraph Co., 148 N. C., 480. But we have also held in as many cases that the message itself may be sufficient to impart the requisite knowledge, and this is so when its great importance is disclosed by the fact that it relates to the illness or death of a person. “When this is the case (as said in Bright v. Telegraph Co., supra) it is sufficient to put the company on notice that a failure to deliver will result in mental suffering, for which damages may be recovered,” citing Lyne v. Telegraph Co., 123 N. C., 129; Sherrill v. Telegraph Co., 109 N. C., 527; Hendricks v. Telegraph Co., 126 N. C., 310, to which may be added Hunter v. Telegraph Co., 135 N. C., 458, where the very question is carefully and elaborately considered by Justice Douglas, with the citation of many authorities; and there are several cases of more recent date to be found in our reports. See Ellison v. Telegraph Co., 163 N. C., 5.

The company will not be permitted to close its mind to the knowledge of significant facts which are apparent on the face of the message, or to disregard its plain import; and if it does so, its fault will not be chargeable to the plaintiff, so as to bar his right to damages. It must see and understand what is obvious to all, that mental anguish will result from delay in handling such a message. These messages are sent to avoid the very thing that has occurred here, and which every intelligent man, mindful of his just obligations to others, should have known would occur *80if be failed in bis plain duty to be reasonably prompt and diligent. If tbis message bad been properly forwarded, it would have accomplished its intended mission, but defendant’s default bas prevented its consummation. We so said in Suttle v. Telegraph Co., 148 N. C., 480, and Dayvis v. Telegraph Co., 139 N. C., 79.

Tbe defendant further insisted that it was not required to transmit tbe message from Rogersville to tbe Technical School over tbe telephone, but only to tbe end of its line; but there is evidence which warranted tbe jury in finding that it undertook to do so. Tbe operator promised “to send it through,” and it was addressed to Ovey J. Betts, at tbe Technical School, via Rogersville. It was also tbe custom to send messages in that way. Barnes v. Telegraph Co., 156 N. C., 150. Besides, defendr ant cannot take advantage of tbis point, because it utterly failed to notify tbe sender, with reasonable promptness, that tbe message bad not been delivered, or to demand any pay for tbe supposed extra service. Hoaglin v. Telegraph Co., 161 N. C., 390. That case was much like tbis one. It was there- held that defendant’s failure to give such notice was evidence of negligence, and further it was said to be well settled “that where a telegraph company receives a message for delivery and fails to deliver it with reasonable diligence, it becomes prima facie liable, and that tbe burden rests upon it of alleging and proving such facts as it relies upon to excuse its failure,” citing Hendricks v. Telegraph Co., 126 N. C., 304; Cogdell v. Telegraph Co., 135 N. C., 431, and other cases. Defendant bas not discharged itself of tbis burden, and tbe prima facie case practically stands unchallenged, or, at least, unimpaired.

It is further urged that Ovey I. Betts was notified too late for him to attend tbe funeral; but we have disposed of tbis contention in discussing other matters. Tbe funeral would have been delayed if defendant bad performed its duty, and there would have been no mental anguish. Defendant argues that tbe words in tbe message, “Have written,” show that Ovey was not expected to come, and therefore no barm was done, citing Gainey v. Telegraph Co., 136 N. C., 447; but that case bears no resemblance to tbis one. Those words were evidently inserted for tbe purpose of giving Ovey Betts more fully tbe particulars of tbe death than.could be done in a telegram, and as soon as possible, in tbe event that be could not come. Like words' have been held not to affect tbe result, but tbe fact stated was treated as a mere incident to tbe general purpose for which tbe message was sent, and in tbis connection it was further said not to be at all in accord with tbe promptings of tbe human heart that tbe average relative should be content to put off coming until tbe last moment. Harrison v. Telegraph Co., 143 N. C., 147. We extract tbis passage from tbe beadnote: “Where a telegram notified a stepmother of tbe death of her stepson and of tbe hour fixed for tbe *81funeral, tbe defendant’s contention tbat tbe only purpose of tbe telegram was to notify tbe mother of tbe bour of tbe interment, and tbat nothing else was reasonably within tbe contemplation of tbe parties, is without merit.”

Tbe objection to Mr. Gatling’s statement to tbe court of tbe facts in Spence v. Telegraph Co., which was decided here by a per curiam, order, is not tenable. Counsel was addressing tbe court upon a question of law and trying to show tbe similarity between tbe facts of tbat case and those of this one, for tbe purpose of arguing, to tbe court, tbat Spence's case was an authority for tbe position be bad taken during tbe trial of this ease below. Counsel was acting strictly within bis rights, and tbe cases of Horah v. Knox, 87 N. C., 483; Harrington v. Wadesboro, 153 N. C., 437; Chadwick v. Kirkman, 159 N. C., 259, and S. v. Corpening, 151 N. C., 623, fully sustain tbe ruling of the Court. In those cases tbe counsel was reading tbe facts of another case to tbe jury for tbe purpose of applying tbe law of the- case to tbe one in band, and it was held proper for him to do so. If tbat be true, bow can it be improper to read tbe facts to tbe court, though they are beard by tbe jury, for tbe same purpose? Mr. Gatling was addressing tbe court and not tbe jury.

It may be well, before concluding, to consider tbe testimony of Raymond Betts upon tbe question of bis mental anguish, as additional to what has already been said in respect thereto, as tbe case, we think, is entirely free from error in other respects, and much stress has been laid upon this one feature of it. He testified: “Q. State to tbe jury bow you suffered in consequence of your brother Ovey’s failure to get tbat telegram and to be present here. A. I knew tbat they were favorite brothers, and knowing tbat my brother was locked up at tbe time and tbat I needed him here, and most everything was left up to me to look after in almost every way, tbe conduct of tbe funeral and looking after my younger brother and all, and knowing tbat be was tbe oldest brother, be would be so much help to tbe family. Ovey J. Betts is my oldest brother; I bad charge of most of tbe funeral arrangements.” It will be seen tbat tbe evidence as to bis mental anguish is much .stronger than was tbat of tbe plaintiffs in cases where the sender of tbe message has been allowed by this Court to recover. Tbat tbe testimony of Raymond Betts, which we have quoted, was competent and tended to prove mental anguish, we think was cleárly decided in Shaw v. Telegraph Co., 151 N. C., 638, where similar testimony was considered and .admitted, and its probative force passed upon by tbe Court.

We have discussed tbe case quite fully because learned counsel of defendant, in an able argument before us, supported by a most carefully prepared brief, have zealously contested plaintiff’s right to recover; but we can see no obstacle in their way. Tbe damages were light, in view ' *82o£ tbe evidence, and tbe negligence was gross and inexcusable. Tbe Postal Company gave prompt and efficient service, wbicb tends to sbow tbat defendant, under substantially tbe same conditions, could bave done mucb better than it did and prevented any loss to it.

There is some discrepancy in tbe evidence as to whether Ovey Betts arrived in Raleigh Tuesday or Wednesday night, but we do not deem this material.

No error.