83 S.E. 568 | N.C. | 1914
This is an action against the defendant to recover damages for delay in delivering a telegram, alleged to have been caused by its negligence. Plaintiff on 8 July, 1911, filed with defendant's operator at Morehead City, N.C. a message addressed to William Faucette, a hackman at Hillsboro, N.C. and of which the following is a copy: "Leaving Morehead this evening; meet me tonight sure." He informed the operator at Morehead City that "he must be sure to get it off at once, as he, the plaintiff, would arrive in Hillsboro very early in the morning and wished to be met by a hack driver, who ordinarily did not meet that train, and he accepted the message and promised to do the best he could." Plaintiff also stated to the operator that "he lived from 1 to 1 1/4 miles from the station at Hillsboro, and had heavy baggage, and that he had hurt his hands severely on a fishing trip." He left Morehead City on 8 July, 1911, at 5 o'clock p. m., taking passage on a Pullman car, and arrived at the station in Hillsboro about 4 o'clock a. m., 9 July, 1911, his uncle, J. W. Webb, being with him. "It was about daylight," he testified. He was worried at not meeting the hackman, and they decided to (485) carry his baggage about 300 yards to the Bellevue Mills and leave it with the watchman there, which they did; and then he walked home. "He was tired and worn out from the trip." He testified, on cross-examination, that there was a dwelling-house about 150 yards from the station, but the occupants were asleep, and that there were other dwellings near by; that the weather was pleasant, and that he had many times before walked from his home to the station and from the station to his home.
William Faucette, the hackman, testified that he was at the station from 5:15 p. m., 8 July, 1911, until the train passed at about 5:38 p. m., and no telegram was delivered to him. Plaintiff telephoned the next morning at 9 o'clock and inquired if he had received his message, and was told that he had not. He went to the station about 8 o'clock a. m. on the 9th, inquired for the telegram, and was told that there was none for him, and that about 10 o'clock the same day, when he was at the station to meet a train, the message was handed to him. He lived 1 1/2 miles from the station, had a telephone; but did not know whether the agent, who had been there about a month, knew him or not. That he would have met the plaintiff at 4:30 a.m. on the 9th, had he received the message in time to do so. *537
The defendant requested the court to charge the jury:
1. That plaintiff could not recover more than nominal damages, including the cost of sending the telegram.
2. That nominal damages, in this case, meant 25 cents, or some similar amount.
3. As there was nothing in the message to indicate the importance of prompt delivery, and as the attention of the company was in no way called to such matters, the plaintiff cannot recover any damage for mental suffering, and they will not consider it in making up their verdict.
The court refused to give the instructions, and defendant excepted.
The court charged the jury as follows on the third issue: "You cannot give punitive damages unless you find that defendant willfully or maliciously or recklessly refused to transmit and deliver the message in question in a reasonable time; but if you so find, you may, in your discretion, give such damages as you may see fit by way of punishment to the defendant." Defendant excepted.
There was no other exception to the charge, except the one taken to the refusal to instruct as requested by defendant.
The jury returned the following verdict:
1. Was the defendant guilty of negligence in failing to deliver the telegram, as alleged in the complaint? Answer: "Yes."
2. What compensatory damages is plaintiff entitled to recover? Answer: "25 cents."
3. What punitive damages, if any, is plaintiff entitled to (486) recover? Answer: "$100."
The defendant appealed from the judgment thereon.
The jury having decided the second issue according to the defendant's prayer for instruction in regard to it, its exception as to the issue became immaterial; and those which relate to the first issue are unimportant, as it was not denied that there was delay in delivering the message, and this constituted a prima facie case of negligence (Sherrill v.Tel. Co.,
We have already stated that defendant was guilty of negligence, and, in a legal sense, it was inexcusable. The law will recompense the party *538
whose right has been violated, by allowing actual damages; but exemplary or vindictive damages are not included therein, but are those in excess of the actual loss and rather designed as a punishment for the willful, wanton, or malicious conduct of one person towards another, and as a warning to other wrongdoers. Being in the nature of a penalty, they should not be awarded unless there are circumstances of aggravation, or such a reckless disregard of the rights of the plaintiff as to imply wantonness, bad motive, or malice. "Such damages," says Justice Hoke
for the Court, "are not allowed as a matter of course, but only where there are some features of aggravation, as when the wrong is done willfully and maliciously, or under circumstances of rudeness or oppression, or in a manner which evinces a reckless and wanton disregard of plaintiff's rights. It is not necessary to submit this element of damage under a separate issue, but there is no objection to this course, and frequently it is desirable. As stated in the principal opinion, there are no circumstances of aggravation shown in this evidence which would justify an award of exemplary damages, but on the issue as to actual or compensatory damages the jury under proper instructions should be directed to award what, in their judgment, is a fair compensation for the plaintiff's wrong under the principle here stated, and not confined to the actual loss in time or money, as was done on the former trial." Ammons v. R. R., 140 N.C. at p. 200. In that case a conductor had ejected a passenger from a train because he had no ticket and had refused to pay 10 cents more than the price of a ticket, which was 40 cents, and which he (487) could not procure on application to the ticket agent before boarding the train, as the supply of tickets had been exhausted, as he was told by the agent, who promised to see the conductor about it and secure him passage at the ticket rate, which he failed to do. The Court unanimously held that he could not recover punitive damages, JusticeBrown saying, in the leading opinion, at p. 198: "To entitle a passenger to such damages, his wrongful expulsion from the train must be attended by such circumstances as to show rudeness, insult, aggravating circumstances calculated to humiliate the passenger. The subject of punitive and compensatory damages has been discussed in many cases in our own reports. In the opinion in this case at the last term the Court called attention to some of the more important. The plaintiff's testimony fails to bring this case within the authority of any of these precedents so as to justify the awarding of punitive damages. On the next trial of the case it will be the duty of the trial judge to explain to the jury the meaning of, and difference between, punitive and compensatory damages, and to instruct them, upon the plaintiff's own testimony, as herein set out, that he is entitled to compensatory damages only," citing Holmes *539 v. R. R.,
In Fohrmann v. Traction Co.,
The court allowed the jury, upon the question of damages, to consider every element of compensatory damages involved in the second issue, including mental anguish, although the plaintiff states in his brief that there is nowhere in the case any claim for damages on account of mental anguish, and notwithstanding the broad latitude permitted to them, the jury assessed the actual damages at 25 cents, which was practically nothing, as it was merely returning to the plaintiff what he had paid out and giving him nothing besides as compensation for the wrong. He was entitled to damages for pecuniary loss, mental or physical pain (if any), inconvenience, annoyance, or discomfort, which is physical, and (489) must not be purely imaginary, but produced through the medium of the senses and not flowing from mere delicacy of taste or refined fancy or abnormal sensibility, and surely not the result of a morbid supersensitiveness. Saunders v. Gilbert,
In W. U. Tel. Co. v. Reeves, 126 Pas., 216 (s. c.,
The case of W. U. Telegraph Co. v. Westmoreland, 44 So. Rep. (Ala.), 382, is more exactly in point, for there a sister wired from Montgomery, Ala., to her brother at Athens, Ala., in the evening of 28 November, 1903, requesting him to meet her that night at the railroad station in the latter town, which he failed to do, as he did not receive the message in time, the message not being delivered until the next evening. Chief JusticeTyson, in the course of a very able and learned opinion, says: "It does not appear by any testimony that the plaintiff was not duly escorted home, or that she sustained any actual damages whatever of any kind by the misfortune of the message not arriving before the train on which she had taken passage. It was not shown that the delay in the delivery of the message arose from any willful or malicious act whatever, nor was there any proof whatever that any mental distress, anxiety, or pain was caused to the plaintiff by the nondelivery of the message." He further states that two questions were presented, and one of them is this, whether punitive damages are assessable for the mere failure to deliver punctually a social message of the character here shown and under the circumstances of this case. He then answers his own question, at p. 383: "Where the wrong in its essence is the mere failure to perform a contract, involving no insult or outrage to the feelings cognizable by the law, and no actual damage to the person or property of the plaintiff, it cannot be held that the public peace or quiet is offended, and therefore there is no basis for the infliction of vindictive damages. And we think, if this was a case in which vindictive damages were assessable at the discretion of the jury, the proofs would not be sufficient to support a verdict involving their allowance. When an actual trespass is committed, or an act, like slander or libel, necessarily involving in its essence an active and intentional wrong, malice may be inferred from the act itself; but when the relations of the parties are contractual, and call for the performance of stipulations undertaken, the presumption of innocence which the law uniformly indulges would characterize the omission of performance in this case as unintentional — that is, simple negligence. We think this is not a case for punitive damages." We may not agree with (492) all that has thus been so well said, but the case is an authority, based upon facts so closely analogous to those appearing in this record, that it is fully sufficient, in other respects, to sustain our view. See Hale on Damages, sec. 124.
While we decide that there was error in regard to the third issue, we do not mean to imply that there are not cases where telegraph companies may be mulcted in pecuniary damages by way of punishment and example for its wrongs in handling messages. Some cases have been before this Court in which such a course might well have been pursued, *544
and where conscious and reckless indifference to the rights of patrons was apparent, the negligence being of a very grave and serious character. It will be well for the defendant to have a care for its own interests in the future and avoid such inexcusable lapses from its plain duty to the public. If its returns, at any particular office, are not profitable enough to justify the employment of a sufficient force to conduct its business properly, it must remember that this shortage in funds at one place may be more than compensated by much larger receipts at others. The law looks at the average profits, for in all extensive businesses some part thereof is likely to be unremunerative. This was expressly held in CorporationCommission v. R. R.,
The presiding judge should not have submitted the third issue, or, having submitted it, he should have told the jury to answer it in the negative, and not have given the instruction to which exception was taken by the defendant.
In any view of the evidence the plaintiff was entitled to recover something — at least nominal damages. What plaintiff told the (493) operator at Morehead as to his reasons for wanting the hack to meet him the next morning was competent. It showed the importance of the message to plaintiff, and put defendant on its guard. The defendant's assignment of error No. 4, subdivision 3, shows the relevancy of this evidence, for there it is claimed that the message, on its face, did not disclose its importance or the necessity for prompt delivery. We have already said that plaintiff was entitled to damages for mental and physical suffering, inconvenience, and so forth. It therefore follows that defendant's assignments of error, relating to these questions, should be, *545 and they are, overruled. The other exceptions have become unimportant.
We therefore direct that the third issue be disregarded and stricken out, and that judgment be entered for the plaintiff upon the remaining issue, that is, for 25 cents and the costs of this Court and the Superior Court.
Error.
Cited: Ferebee v. Berry,