45 S.E. 938 | N.C. | 1903
On 9 November, 1900, the following telegram was sent from Mooresville, N.C. addressed to the plaintiff at Wedgefield, S.C., where she resided, in three miles of the defendant's office: "Aunt Anna dead. Funeral Sunday. Answer quick." This message was never delivered, but the contents came to her knowledge the evening of 10 November, too late to take any train in time for the funeral. The "Aunt Anna" named in the message was a sister to the plaintiff. The plaintiff testified that if she had received the message that day or any information as to the death of her sister, she could and would have gone to Mooresville. The son of the plaintiff testified that the operator at Wedgefield knew where the plaintiff was living the day the message was received, and this was not contradicted by any evidence. The sender did not know the plaintiff lived beyond the free-delivery limits, and paid all that was asked for sending the message. No special delivery charges were demanded, and the operator at Wedgefield wired back to Mooresville merely: "Party not known." In deference to an intimation from the court below, the plaintiff took a nonsuit, and on appeal at last term that ruling was affirmed by a per curiam judgment. On this petition to rehear we are of opinion that the case should have been submitted (605) to a jury. The defendant relies on four grounds:
1. That the sendee lived outside of the free-delivery limits. InHendricks v. Tel. Co.,
2. The second ground, that no special delivery charges were guaranteed, is disposed of by what has already been said. The facts of this case differ widely from those in Hood v. Tel. Co., which affirmed a nonsuit by a per curiam,
3. The third ground, that the claim for damages was not presented in sixty days, is answered by the fact that the summons was issued and served within sixty days. Sherrill v. Tel. Co.,
The last objection is that the wrong, if any, occurred in South Carolina and is to be tried by the laws of that State, which it is alleged did not at that time allow the recovery of damages for mental anguish. A case exactly in point is Reed v. Tel. Co., 58 Am. St. (Missouri), 609, 34 L.R.A., 492, which holds that "if a telegraph message is delivered to the company in one state to be by it transmitted to a place in another state, the validity and interpretation of the contract, as well as its liability thereunder, is to be determined by the laws of the former state." The contract was made at Mooresville in this State; it is a North Carolina contract, and damages for its breach are to be assessed according to the liability attaching to such contract under our laws. The Code, sec. 194 (2), authorizes an action against a foreign corporation "by a (608) plaintiff, not a resident of this State, when the cause of action shall have arisen . . . within this State."
Our authorities have been uniform and unanimous, from the first case (Young v. Tel. Co.,
We have heretofore (107 N.C. at p. 385) quoted that great lawyer,Cicero (from his 11th Philippic against Marc Antony), to show that the same view was held among the bar that gave to the world the great Code of the Civil Law, "Nam quo major vis est animi quam corporis, hoc sunt graviora eaquae concipiuntur animo quam illa quae corpore."
Not to prolong the discussion, in such action as this for breach of contract there is the same reason for recovery of damages without physical injury as in actions for breach of contract of marriage and the like, i.e., that in both cases the parties have notice that mental anguish will be the probable consequence of a breach of contract. If viewed as an action of tort, there is the same ground of recovery of damages for mental anguish caused thereby as in actions for seduction and the like; besides, there is the further reason that the telegraph company has violated a public duty which it undertook to discharge in consideration of the grant of its charter. A strong statement of this view may be found, 3 Sutherland Damages (4 Ed.), sec. 975; Joyce Elec. Law, sec. 825.
The judgment of nonsuit should be set aside and a new trial is ordered.
Petition allowed.
Cited: Cogdell v. Tel. Co.,
(610)