83 S.E. 475 | N.C. | 1914
BROWN, J., concurs in result. This action was brought to recover damages for an alleged delay in the delivery of a telegram filed with the defendant at 2:30 o'clock (250) p. m., on 23 June, 1913, addressed by A. S. Adams, at Angier, N.C. to Annie E. Smith, feme plaintiff, High Point, N.C. which read as follows: "Baby died this evening. Come." At the time of its delivery to the operator at Angier, he asked for a better address — the correct street and number — and was told that it was not remembered at the time, and to "Send it anyway," which he did. At 3:38 o'clock p. m., the operator at Angier was notified by a service message that the telegram to Mrs. Smith had not been delivered, "as unable to locate sendee," and was handed to A. S. Adams at 4 o'clock p. m., as stated by the operator, but, as stated by A. S. Adams, at 6 o'clock p. m. Adams was not positive about it, and testified according to his best recollection. Adams was then asked for the correct address — the street and number — but told the operator he did not know it, but would get it and give it to him, which, he testified, was done by him that night, but too late, as he admitted, to send the reply message that night, as it was after 9 o'clock or after office hours. The operator told him that he could not get it through that night, but would do so the next morning, and after the office opened the next morning, about 9 o'clock, he sent the message with the correct street address. After this and some time that morning, he notified Adams that the first message had been delivered. There was no delay in sending the message on the morning of 24 June, 1913. The message was: "Angier, N.C. 24 June, 1913. Better address mine 23d, Adams to Smith, is 403 Grimes Street." There was evidence that the first message reached Annie E. Smith between 10:25 and 11 o'clock on the 24th. The following messages passed between the parties afterwards:
1. High Point, N.C. 24 June, 1913, W. A. Smith to Arthur Adams, Angier, N.C. sent at 8:25 a. m.: "Give full name of person died by wire at once."
2. Angier, N.C. 24 June, 1913, A. S. Adams to W. A. Smith, sent at 9:50 a. m.: "My baby about a year old."
3. High Point, N.C. 24 June, 1913, Annie E. Smith to Wiley Young, care of Young Drug Store, Angier, N.C. sent at 10:25 a. m.: "Be there tomorrow morning. Hold Cyrus's remains out." *291
4. High Point, N.C. 24 June, 1913, sent at 10:27 a. m. to Angier, N.C. service message: "Yours signed Adams delivered this a. m., after holding it over."
5. Angier, N.C. 24 June, 1913, A. S. Adams to Annie E. Smith, 403 Grimes Street, High Point, N.C. sent at 10:54 a. m.: "My baby dead, not Cyrus. Wire at once if you want to come."
6. High Point, N.C. 24 June, 1913, Annie E. Smith to A. S. Adams, Angier, N.C. sent at 12:15 p. m.: "Sorry, but cannot come on account of delay of first telegram."
Mrs. Annie E. Smith, one of the plaintiffs, testified: "I have a (251) brother named Cyrus, 13 years old. He is my baby brother. When I got the first telegram I did not know what to think, because the name was not on it, only Adams. I didn't know which one of my brother's babies it was. My husband wired back before he ever delivered the telegram to me — before he came back to deliver the first telegram he wired back for the full name, and then I got that telegram after my husband wired back, `Give full name of person dead by wire at once.'"
There was evidence of negligence in the delivery of the first telegram to Mrs. Smith, as her name was in the High Point directory and the messenger, while trying to deliver the message, was told where she lived, and there was evidence which tended to exculpate defendant. The evidence also tended to show that there were three trains, at that time, which left High Point, N.C. connecting at Durham, N.C. for Angier, N.C. The first left High Point at 6:27 a. m., and reached Durham at 9:25 a. m.; the second left at 9 a. m. and reached Durham at 3:25 p. m., and the third left High Point at 9:20 p. m. and Greensboro at 12:50 a. m. and arrived at Durham at 3:25 a. m. The through train from Asheville passed High Point at 3:40 in the afternoon and arrived at Durham at 6:25 p. m. Angier is 41 miles from Durham, and there were two trains from Durham; one left the latter place for Angier at 7:30 a. m., arriving at Angier at 9:30 a. m., and the other at 3:30 p. m., arriving at Angier at 5:38 p. m. All these were passenger trains, and the most direct route from High Point to Angier is by way of Durham.
There was evidence that the feme plaintiff had a brother named Cyrus, about 12 years old, and that the child who died was her nephew, and that the time for the funeral of the deceased child had been fixed at 4 p. m. of 24 June, 1913.
The defendant requested the court to charge, substantially, that if the jury found by the greater weight of the evidence that the delivery of the first message was delayed, and that defendant, after it found that it was unable to deliver the message to the sendee, asked for a better address, which plaintiff unduly delayed to give, and that the delay in delivering the message was caused proximately by the failure of plaintiff to give a *292 better address, they would answer the first issue "No." This the court declined to do.
The jury returned the following verdict:
1. Did the defendant carelessly and negligently fail to deliver the telegraphic message, as alleged in the complaint? Answer: Yes.
2. If the message had been delivered in a reasonable time, would the plaintiff have attended the funeral of her nephew, as alleged in the complaint? Answer: Yes.
(252) 3. What damage, if any, has the plaintiff sustained on account of mental anguish caused by the negligence of the defendant? Answer: $200.
Judgment thereon and appeal by defendant, after reserving all exceptions taken during the trial. The telegraphic correspondence between the parties shows that the first message in the series, in the transmission and delivery of which negligence is charged against the defendant, was handed by the messenger to the husband of the plaintiff some time before 8:25 o'clock a. m. on 24 June, 1913, as the husband, W. A. Smith, wired back to A. S. Adams, at Angier, for the full name of the person who had died, which was received at Angier at 8:25 a. m. He would not have sent such a message had he not known that some one had died, and he could only have received this information from the telegram of Mr. Adams, announcing that "baby died this evening." Mrs. Adams testified that her husband received the first message and afterwards delivered it to her, but before doing so he had inquired for the full name of the child.
We do not understand why either the husband, W. A. Smith, or his wife, Annie E. Smith, who sues in this case, should have understood that the first message, from A. S. Adams to Mrs. Smith, referred to her young brother Cyrus, as he was 13 years old, and she knew that her brother, A. S. Adams, had an infant child. She further said: "When I got the first telegram, I did not know what to think, because the name was not on it, only Adams. I did not know which one of my brother's babies it was." And still further: "On 24 June, 1913, we got several telegrams from Mr. Adams. The baby that died was my nephew; a boy, and my brother's son, and was 1 year old. It was between 11 and 12 o'clock on 24 June, 1913, when I got this telegram. About 11 o'clock on 24 June I got another telegram. That was the second one I remember. I got the one announcing the baby's death just a few minutes before I got any *293 other. The other telegram stated the full name. I just do not remember what the other telegram said. My husband received it." She also stated that the reason that they wired for the full name was that the first message was signed merely "Adams," and "we sent back for the name on the other telegram." She did not remember whether she received a telegram reading, "My baby about a year old." She was much "torn up and broken down" by the fact that she could not be at the funeral, was the reason for her forgetfulness. She said: "I knew it was one of my brother's babies. When I got the first telegram I did not think it was my brother that was dead." She denied sending the telegram (253) in care of Young's Drug Store, stating that she would be there at 11 o'clock the next day, and "to hold remains of Cyrus out," and never heard of it before, and did not remember the telegram stating that she could not come. She did not "remember anything about any telegram except the first one, and never sent any telegram, but just found out it was her brother's baby." She afterwards said that she did not remember whether she authorized any one to send the message to Wiley Young. There was much other evidence of the same nature. It appears, though, that she was informed of the identity of the child as early at 12 o'clock on 24 June, 1914, and could have taken the Asheville train passing High Point at 3:40 p. m., arriving at Durham at 6:25 p. m., leaving there at 7:30 a. m. the next day and arriving at Angier at 9:30 the same morning. There was also a train leaving High Point at 9:20 p. m., arriving at Greensboro about 30 minutes later, connecting with the train which leaves Greensboro at 12:50 a. m., and which arrives at Durham at 3:25 the same morning. A train then leaves Durham for Angier at 7:30 a. m., arriving there at 9:30, as above stated. These were the train schedules when the telegrams were exchanged between the parties, and plaintiff admits that she could have taken the Asheville train at 3:40 p. m. on 24 June, or the midnight train and stayed in Durham that night, reaching Angier the next morning at 10 o'clock, as she said, or 9:30, as defendant's witness testified.
If plaintiff had admitted sending and receiving all the telegrams, or even that she authorized them to be sent, and that she received the answers, or if the jury had found that she did, we think she could not, in law, have recovered for any mental anguish caused by her inability to attend the funeral, because she had an opportunity to do so, as she had received the telegram from Mr. Adams, giving her full information and asking her to wire at once if she wished to come, and this was notice to her, especially when considered in connection with his telegram that he would postpone the funeral for her arrival the next day, as she could not have reached Angier on the 24th, and he must have known it. She should, therefore, have taken the train at 3:40 p. m., or at midnight, for Angier. *294 But she denies sending any of these, and admits that she received only the first two of the series, and then too late to attend the funeral, which was to take place the afternoon of the same day at 4 p. m. She testified, as stated, that she "did not remember anything about any telegram except the first one." We would, therefore, have to resort to defendant's testimony for any proof in regard to these matters, and we are forbidden to use it, unless to the extent that it tends to support the plaintiff's case.
(254) But even if plaintiff sent and received all the telegrams, the defendant would be liable to her, in tort, for some damages on account of the negligent delay in delivering the first message on 23 June, as there is evidence that the messenger, Joe Ridge, went to the house of William Smith, brother-in-law of plaintiff, as early as 4 p. m. on 23 June, and there received from him information as to the correct street address of the plaintiff, but for some reason failed to deliver it until the next morning. It is true that there is evidence tending to show that no such information was given, but this conflict in the testimony was for the jury to settle. If they find that there was negligence, she is entitled, at least, to nominal damages for the breach of duty (Hocutt v. TelegraphCo.,
We find, though, by an examination of the record, that these views were not explained to the jury at all, and the right to recover full damages was made to turn altogether upon the negligence in regard to the delivery of the first telegram only, whereas the charge should have covered both aspects of the case. The damages awarded embraced those flowing from the mental anguish caused by her not attending the funeral, *296 when the jury may have found, had they been properly instructed, that she could have attended the funeral after she received the last message, if she had desired to do so, and therefore suffered no mental anguish on that account. The court made the barest and briefest reference to this feature of the case, and then only in stating the contention of the defendant, and even then confined the case entirely to the conduct of the defendant (256) in respect to the first telegram. There was positive error in allowing the jury to assess damages based upon the negligent delay in delivering the first telegram, and for mental anguish caused by her inability to attend the funeral, without reference to the opportunity she had of doing so after she received the telegram offering to postpone the funeral for her arrival, if the jury found that such was the case. It laid down too broad a rule.
We think, also, that the court should have given the instruction as to proximate cause requested by the defendant, or one substantially similar.Hargrave v. Telegraph Co., 60 S.W. 689, which is much like this case. The instruction requested by defendant was substantially correct, and should have been so given, as decided in Baker v. R. R., 144 N.C. at p. 42, where a similar prayer was submitted and where we said: "The general charge of the court in respect to the degree of care required of the defendant's servant in approaching the crossing with the train would perhaps have been fully sufficient in the absence of any request for more specific instructions. Boon v. Murphy,
The defendant would not be liable in damages if its negligence did not proximately cause the injury, and it is practically the same to say that liability would not arise if the delay in delivering the telegram was not caused proximately by its negligence, for the delay was the injury or breach of duty, which it is alleged caused the damages. *297
The learned judge defined proximate cause and made some general reference to it, but no real application of it, and we do not think the charge shows any sufficient or substantial response to the specific prayer of the defendant, which was expressly refused, as requested by it, and at the time it was submitted.
Mental anguish which is caused by the failure to deliver, or (257) delay in delivering a telegram is a legitimate ground upon which to base a recovery of damages, as we have so often held, beginning withYoung v. Telegraph Co.,
We conclude, for the reasons given, that the case should be tried again.
New trial.
BROWN, J., concurs in result.
Cited: Wilson v. Scarboro,