139 N.C. 79 | N.C. | 1905
Lead Opinion
after stating the case: At the close of the plaintiff’s testimony, and again at the close of the entire testimony, there was a motion to nonsuit by the defendant, and exception duly taken.
The decisions of this court have established the principle that the addressee of a telegram, where there has been a wrongful failure to deliver or negligent error in transmitting the message, may, under certain circumstances, recover compensatory damages for mental anguish where the message is for his benefit or concerns his domestic or social interests, and this, independent of any bodily or substantial pecuniary
The decisions further hold that before a recovery can be had on that account, the defendant company must be notified that mental anguish will naturally and reasonably follow as a result of its misconduct, either from the character and contents of the message itself or from facts within its knowledge, or brought to its attention at the time of accepting the message for transmission, or certainly in time to have enabled it to avoid the consequence complained of by due care and diligence. Kennon’s case, supra; Williams’s case, 136 N. C., 87; Green’s case, 136 N. C., 489; Cranford’s case, 138 N. C., 162.
The judge told the jury that such notice must be brought home to the defendant, and under his charge the jury have necessarily decided that the plaintiff’s version as to what took place, at the time the telegram was handed to the defendant’s agent, was the true one. ’ .
Applying these principles to the facts of the case before us, the plaintiff has made out a cause of action. The' testimony of Mrs. Dayvis on that point was as follows: “When I got to Eocky Mount I went to Weldon. ' I got to Eocky Mount about 2 p. m. I got to Weldon about 5 p. m. registered at the hotel, went to the telegraph office (identifies
The court is of opinion that there was ample testimony to notify the defendant that if the message was not delivered and the husband was thereby left in ignorance of the whereabouts and condition of his wife and children, it would be to him a matter of grave concern and might well result in actionable suffering and mental anguish. There was no error in overruling the defendant’s motion to nonsuit.
In some of the cases on the subject of mental anguish, there is a strong intimation that the action should be in tort, as involving a breach of public duty, and there is high authority to the effect that only in this character of action can a suit he sustained by the addressee of a message. In awarding the damages to be recovered, however, where the right to damage has been established, the decisions of this court have thus far uniformly applied the law governing cases for breach of contract, and this course' seems very generally to have obtained. 27 Am. & Eng. Enc. (2nd Ed.), 1059; Thompson on Law Elec., sec. 386.
In the examination of Mrs. Dayvis, who was a witness for plaintiff, she was asked by the plaintiff’s counsel if she and her children had anything to eat in Weldon, the day they were there, and the witness replied, “Only a few cakes and a couple of cocoa colas.” The witness was then asked why, and she replied “Because they had no money.” This evi
In response to prayers for instruction preferred by the defendant’s counsel, the judge instructed the jury as^follows: “I have been requested by counsel for defendant to instruct you that you should not consider any suffering or anxiety which the plaintiff’s wife or children suffered by reason of taking the wrong car to reach Kocky Mount’ and having to stop at Weldon, or being ill during the time, or having no money with them. I give you that instruction. The defendant also asked me to instruct you that the jury should not consider any evidence with reference to the plaintiff’s anxiety caused by the mental or physical suffering of his wife or children, due to the fact that they were unwell and without means to support them. The court gives you that instruction.” The defendant concedes that this part of the charge would amount to a withdrawal of the objectionable testimony if it stood alone, but contends that it wa§ in effect again submitted by reason of the following addition to the charge: “Ton will note that these last two instructions relate to recovery based upon the idea of the suffering of the wife or of the children, or of their anxiety and trouble that they may have had at Weldon. You will understand that this action is not brought by the wife nor by the children; it is brought by the husband; and therefore you are limited
The cpurt is referred by the defendant to Sparkman’s case, 130 N. C., 447, as authority for the position that no recovery at all can be had in the case now being considered. In that case, S. B. Sparkman, at Durham N. C., at 2:10 o’clock p. m., March 11, 1904, received a message from one S. Johnston, Little Rock, Ark., that his brother, E. Sparkman, had died at Little Rock, Ark., on the day before. About two hours later S. B. Sparkman sent or left a message with the company addressed to S. Johnston, Little Rock, Ark., as follows: “Shall we look for him? What are you going to do?” Signed, S. B. Sparkman. The message was never delivered to Johnston, and, on action brought for mental anguish, judgment was given for the defendant. There is no doubt that this case is well decided, and for the reason given by the court that there was nothing in the language of the telegram nor in anything brought to the attention of the company leading it to believe that mental anguish would result by reason of the failure to deliver the message. “Surely,” said the court, “the distance between Durham and Little Rock, in connection with the brother’s death the day before the telegram was delivered to the defendant, would preclude any idea that there was a desire or purpose on the part of
Alcard’s case refers for authority to Rowell’s case, 75 Texas, 26, and of this authority tbe opinion in Sparlcman’s xase further says that “Rowell’s case seems to be a leading case.” Tbe headnote is “Anxiety caused by tbe failure of a telegraph company to deliver a message conveying information of tbe improved condition of a sick relative furnishes no ground for recovery against tbe company for its negligence.”
Rowell’s case was one where tbe plaintiff, J. H. Eowell, bad received a message saying that bis wife’s mother “was worse, dangerously sick.” He sent a message of inquiry, “How is mother ? If no better, Josie comes tonight. Answer at my expense.” A reply was forwarded to him, “Mother some better. Doctor says not dangerous.” Tbe last message the company failed to deliver, and, on action brought, tbe court held as stated that tbe plaintiff could not recover. In tbe opinion tbe court declares as follows: “We are of opinion that tbe demurrer was properly sustained. Tbe damage here complained of was tbe mere continued anxiety caused by tbe failure promptly to deliver tbe message. Some kind of unpleasant emotion on tbe mind of tbe injured party is probably tbe result of a breach of contract in most cases, but tbe cases are rare in which such emotion can be held an element of damage resulting from tbe breach. Eor injury to tbe feelings in such ease tbe courts cannot give redress. Any other rule would result in intolerable litigation. We regard this case as differing in principle from that of Stewart v.
If a breach of contract, involving also a breach of public duty, by reason of which a telegraph company fails to relieve an oppressive and harrowing anxiety about the serious illness of a dear relative or the result of a dangerous and threatening surgical operation, cannot be made the subject matter of recovery in actions of this character, the doctrine should be abandoned.
.It is not a correct premise to characterize such a grief or anxiety as “some kind of unpleasant emotion in the mind of an injured party incident to a breach of contract in most cases.”
Nor is the conclusion convincing: “For injury to feelings in such cases the courts can give no redress. Any other rule would result in intolerable litigation.” The limitation laid down in Rowell’s case has been criticised by a recent writer and held to be inconsistent with other decisions on this subject. 3 Southerland Dam., section 915, and like comment is made in Connelly v. Tel. Co., 100 Va., 51. The court does not think the principle laid down in Rowell’s case is a sound one, and the opinion in Sparkmans case, in so far as it adopts such principle, is not approved.
There is some question if Sparkman’s case .applies to the one we are now considering in any way. This message was sent to prevent anxiety in the plaintiff’s mind, and, but for the defendant’s default, would havé filled its mission, except perhaps for an hour and a half while the plaintiff was up the road in the expectation of meeting his wife.
There is no reversible error and the judgment is
Affirmed.
Dissenting Opinion
dissenting: I am unable to agree with my brethren in the disposition made of this case. I am of opinion, first, that the motion to nonsuit should have been allowed, and, second, that there was error committed, and a new trial should be awarded.
1. The facts taken, in any light, do not show a case where a recovery for mental anguish should be allowed. The right to recover damages for mental anguish, not growing out of physical injury, is the settled law of this State, although the wisdom of permitting such recovery is denied by some of the ablest courts in the country. No one has ever contended that the damages are punitive in character. They are purely compensatory and are allowed for acute mental suffering. Anguish is defined to be “intense pain of body or mind” and is derived from anguis, a snake, referring to the writhing or twisting of the animal body. Hancock's case, 137 N. C., 501. We find no case where such damages are allowed for mere disappointment. This view of what constitutes that degree of mental suffering, for which actual or compensatory damages may be had, is endorsed by this court in Hancocks case and also in Eunters case, 135 N. C., 459. The opinion in Eunters case was written by Justice Douglas, who cannot be said to have unduly favored the telegraph companies.
The facts in this case, with which the defendant is connected, disclose nothing that should cause any feeling at all approximating anguish in the mind of a man of ordinary courage and self-possession. Doubtless the chief anxiety of the plaintiff arose from the fact that he had been guilty of such gross negligence as to supply his wife with only money enough to purchase a ticket from Durham to Washington, with nothing to buy bread with in case of an accident. When the plaintiff discovered at Paetolus that his wife and children were not on the train, common experience should have taught him that they had missed connection and that there were no reasonable grounds for serious apprehension. Knowing that
Mrs. Dayvis testified that she took the wrong train at Rocky Mount and went on to Weldon and there filed the telegram set out in the record. She states, “I told the operator I had been thrown over at Weldon; had two children with me; they were sick; my husband was to meet me and would be worried unless he got the message.” There is nothing here to put any one on notice that, what this court has defined mental anguish to be, would probably result from a failure to deliver the message.
The conclusion of Mrs. Dayvis, that her husband would' be worried, is immaterial. Worry is not sufficient to justify a recovery. Erom the message and disclosure,of Mrs. Day-vis, the defendant could draw only natural and reasonable inferences, which inferences would be that an ordinarily robust husband with ordinary self-control is waiting for hi3 wife and children, and if he fails to meet them, he will take a common sense view of the matter and conclude that they are delayed somewhere en route, as is often the case. The company cannot foresee the result of its negligence due to facts not brought to its attention. It was not disclosed to the company, nor is it shown that the company was aware of ,the fact that Dayvis knew his children were sick or that his wife was without money; and these facts are stated by the plaintiff to be the real ground of his suffering. On cross-
On redirect examination, the plaintiff testified tbat bis anxiety, because be feared his wife and children might be inconvenienced and uncomfortable, was the chief cause, and in fact the only cause of bis suffering. It has often been held tbat distress, because of the discomfort of another, cannot be held the basis- of an action for mental anguish. Tel. Co. v. Stratemire, 32 N. E., 871 (Ind.); Tel Co. v. Cooper, 71 Texas, 507. Any misapprehension suffered by the plaintiff, as to the meaning of the failure of bis wife and children to arrive when expected, though resulting in mental anguish, cannot be made the basis of a recovery of damages. Bowers v. Tel. Co., 135 N. C., 504; McAllen v. Tel. Co., 70 Texas, 243.
2. There has been great trouble in ascertaining the ground on which telegraph companies may be held liable to the addressee of a telegram, not a party to the contract. Different views are advanced by courts and law writers, but this court seems to have adopted the contract theory. That being so, there must be some reasonable measure by which damages can be awarded. Doubtless having this in view, this court in Sparkman’s case adopted the rule of the Texas Supreme Court and held that “a telegraph company is not to be held liable in compensatory damages for its failure to forward or deliver a message intended to relieve mental anxiety then
In this case, the plaintiff was already, as claimed, suffering anguish. He ascertained at Pactolus that his wife and children were not on the train. He could not get a telegram until he reached Washington. Had he received the telegram what would he have learned? Only where they were. He would still have suffered all the distressing anxiety growing out of the knowledge that his family were in a strange town, sick and penniless, owing to his own improvidence. How can a jury under such circumstances measure the inental anguish for which the defendant may be liable, and distinguish it from the existing as well as continuing anxiety for which the defendant is not liable? The Texas court is advanced in its views on these questions, and having adopted its rule in Sparkman’s case, I see no reason to overrule it.
3. It is admitted that the court erred in admitting improper testimony. I do not think the court below corrected its error. A careful reading of the attempted correction contained in the charge satisfies me that the jurors were permitted still to consider the mental anguish suffered by the plaintiff, growing out of a knowledge of his family’s sick and penniless condition. This was well calculated to prejudice the defendant, and doubtless increased the damages which seem to be more than ample compensation for such anxiety, as a reasonably self-contained man should have suffered under the circumstances of this case, omitting those conditions for which the defendant is admittedly not responsible.
Dissenting Opinion
dissenting. I concur in the dissent of Mr. Justice Browñ. I prefer to rest my dissent upon the last
The defendant company was not responsible for the failure of Mrs. Dayvis to reach Washington on the 26th day of June or of her remaining in Weldon. The misdirection of some person connected with the railroad was the cause of her misfortune. The plaintiff’s state of mind was caused by^ his failure to meet his wife on the cars at Pactolus. The breach of duty by the defendant did not cause this anxiety. The purpose of the wife in sending the telegram was to relieve this state of mind on the part of the husband. By reason of the failure to deliver the telegram, the state of mind continued — the mental anxiety was not relieved. A strikes B a blow causing pain. C, a physician, is called in and undertakes to relieve,the pain. He negligently fails to perform his contract — he is liable in damages, not for the origin of pain, but for the nesdisent failure to relieve it. I concur with xhe
