57 S.E. 122 | N.C. | 1907
Action to recover damages for mental anguish arising from failure to deliver a telegram sent from Danville, Va., to Durham, N.C. as follows: "To E. C. Johnson, Durham, N.C.: Sidney died last night, 25 *284 minutes after 9." The charges for transmitting said message were prepaid by plaintiff. The Sidney referred to was plaintiff's son. (411) The court submitted the usual issues and the following additional issue:
"3. Under the law of the State of Virginia, can damages for mental suffering, independent of any injury to person or estate, be recovered against a telegraph company for negligent failure to deliver a message or for negligent delay in the delivery of a message, although the telegraph company is advised of the character of the message? Answer: No."
The jury answered the other issues for plaintiff and assessed damages at $300. It is admitted that there is no other evidence of damage than mental suffering. The defendant moved for judgment upon the admissions and the finding of the jury upon the third issue. The court overruled the motion, and the defendant excepted and appealed.
The exact question presented for decision has been considered and decided in this State adverse to plaintiff's contention, and following such decision the court below should have granted the defendant's motion, it being admitted that there is no other evidence of damage except that arising from mental suffering alone. Bryan v. TelegraphCo.,
"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 *285 not at that time allow the recovery of damages for mental anguish. A case exactly in point is Reed v. Telegraph 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 plaintiff, not a resident of this State, when the cause of action shall have arisen . . . within this State.'"
It is manifest that the fact that the plaintiff, a nonresident, came to this State and brought suit, makes no difference between that case and the case at bar. The principles of law governing the case are the same, whether the suit is brought in our courts by a resident of this State or a nonresident who comes here and institutes his action under our Code.Cannaday v. R. R.,
The learned counsel for the plaintiff was evidently inadvertent (413) to Bryan v. Telegraph Co. when he stated that this question is now presented here for the first time. In that case it is distinctly held that it is a North Carolina contract, and damages must be assessed under our laws and not under the laws of South Carolina, where the breach occurred. This doctrine was reaffirmed and Bryan v. Telegraph Co., cited and approved by this Court, as at present constituted, in Hancock v.Telegraph Co.,
Thus we see that the principle laid down in Bryan's case was settled upon after mature consideration upon a rehearing, and has been reaffirmed subsequently by a unanimous Court in Hancock's case and later in an elaborate opinion by Justice Hoke in Hall v. Telegraph Co.,
(414) The opinion of the Chief Justice in Bryan's case is supported by abundant authority, although we admit the cases and textwriters are not in accord. The contract entered into at Danville for the benefit of this plaintiff may be regarded as a continuous and indivisible contract, the performance of which may run through several States. It was entered into in Virginia and partially performed in that State. The case of Reed v.Telegraph Co.,
Where the contract is made in one State to be fully performed in another, the law of the latter governs. "This rule is founded," says the Supreme Court of Wisconsin, "on the idea that in making a personal (415) contract to be fully performed in another State, the parties must have had the law of that State in view. But if the contract is to be partly performed where made and partly in other countries or States, the law of the place where it is made will still govern, unless a clear mutual intention is manifested that it shall be governed by the law of some other country." Bartlett v. Collins,
The principle declared in Bryan's case, and reaffirmed in Hancock'scase and in Hall's case, is expressly maintained by the Supreme Court of Texas in Telegraph Co. v. Waler,
It will be observed that the decisions of this Court are on all-fours with the above quoted Texas cases. In the Bryan case the telegram originated in North Carolina and was sent to South Carolina, where the breach occurred. The law of North Carolina was applied. In the Hall case, which is in every respect identical with the case at bar, the telegram originated in Virginia and was sent to North Carolina, where the breach occurred and where the suit was brought. The law of Virginia was applied byMr. Justice Hoke, who, speaking for a unanimous Court, said: "The complaint averring that the contract was made in Virginia, the rights of the parties will be determined by the laws of Virginia so far as the same apply." The learned justice cites and approves both the Bryan and the Hancock cases.
The lex loci solutionis seems to apply to those contracts made in one country and to be wholly performed in another, indicating thereby two distinct places of contract, one where it is entered into, and the other where it is to be entirely performed. Locus, ubi contractus celebratus est;locus, ubi destinata solutio est. It may be said that the law of the place governs only as to the validity and interpretation of the contract, and not as to the means of enforcing it or compensating for its breach. The lexloci seems to embrace more than that. It is said in 9 Cyc., 668: "This law (of the place) governs not only as to its execution, authentication, and construction, but also as to the legal obligations arising *288
(417) from it, and as to what is to be deemed a performance, satisfaction, or discharge." Davis v. Morton, 96 Am. Dec., 345. The Supreme Court of Indiana holds that the law of the place includes the remedy there given for its breach, but does not interfere with a question of legal procedure, which is governed by the lex fori. Cochran v. Ward,supra, and 51 Am. St., 229. The Supreme Court of the United States says: "It is also the settled doctrine of this Court that the laws which subsist at the time and place of making a contract enter into and form a part of it as if they were expressly referred to or incorporated in its terms. This rule embraces alike those which affect its validity, construction, discharge, and enforcement." Again: "The obligation of a contract includes everything within its obligatory scope. Among these elements nothing is more important than its means of enforcement. This is the breath of its vital existence." Edwards v. Kearsey,
Reversed.
Cited: Woods v. Telegraph Co.,
Overruled: Penn v. Telegraph Co.,
(418)