11 S.E. 1044 (N.C. 1890), Young v. Western Union Telegraph Co.

Citation:11 S.E. 1044, 107 N.C. 370
Opinion Judge:CLARK, J., (after stating the facts as above.) PER CURIAM.
Attorney:Manly & Guion, Simmons & Gibbs, and L. J. Moore, for plaintiff. Clark & Clark, for defendant.
Case Date:October 13, 1890
Court:Supreme Court of North Carolina

Page 1044

11 S.E. 1044 (N.C. 1890)

107 N.C. 370




Supreme Court of North Carolina

October 13, 1890

Syllabus by the Court.

Where a telegraph company received the following message: "Come in haste; your wife is at the point of death," --and failed to deliver the same for eight days, though the receiver's place of business was well known, and within a short distance of the office of the company in the town in which the receiver resided, whereby he was prevented from being present at his wife's death, or attending her funeral, held, (1) there was gross negligence, and the receiver was entitled to maintain an action for the tort; (2) the plaintiff is entitled, in addition to the nominal damages, to recover compensation for the mental anguish inflicted on him by the negligence of the defendant.

This was a civil action tried before BOYKIN, J., at the fall term, 1889, of Craven superior court, upon demurrer to the complaint. The complaint alleges, in substance, that, on 26th February, 1889, the step-father of plaintiff's wife, at Greenville, S. C., at whose house the wife was on a visit, delivered to the defendant telegraph company the following telegram, paying the sum charged for its transmission: "Greenville, S. C., Feb. 26, 1889. To J. T. Young, Newberne, N.C. Come in haste; your wife is at the point of death. [Signed] J. W. RICE." That the telegram was received by the agent of defendant at Newberne, on 27th February, and with ordinary care and attention could have been delivered to plaintiff within a few minutes after its receipt, as the plaintiff's residence and place of business were well known, the latter being on a principal street, and within 400 yards of the telegraph office, and plaintiff had been a resident many years, continuously, in Newberne, engaged in business there; that, by the gross negligence of defendant, the plaintiff had no notice of such telegram until the receipt of a letter from the sender on March 5th, whereupon he went to defendant's office on March 6th, and demanded the telegram, which was then delivered to him; that the plaintiff was continuously in Newberne, at his usual place of business, from February 26 till March 6, 1889; that had the telegram been delivered with reasonable promptness he could have had the consolation of being with his wife in her last moments, and of attending her funeral, but, by reason of aforesaid gross negligence on the part of the defendant, the death and burial of his wife took place without any knowledge thereof on the part of the plaintiff; that the plaintiff had suffered great pain, mental anguish, and distress by reason of the gross negligence and delay in transmitting and delivering the telegram, and demands damages. The defendant demurred to the complaint on the ground that "it does not state facts sufficient to constitute a cause of action, in that the only damage which it is alleged that plaintiff has sustained is mental anguish and grief by reason of the plaintiff's not being able, on account of defendant's failure to deliver the message, to be present with his wife during her illness, and attend her funeral." The demurrer was overruled, and defendant appealed.

The receiver of a message informing him of the dangerous illness of his wife can maintain an action against the telegraph company for its gross negligence in delaying to deliver the message.

Manly & Guion, Simmons & Gibbs, and L. J. Moore, for plaintiff.

Clark & Clark, for defendant.

CLARK, J., (after stating the facts as above.)

In addition to the ground of demurrer set out in the record the defendant demurred ore tenus in this court that the complaint did not state a sufficient cause of action, in that the plaintiff was not a party to the contract, and therefore could not maintain an action for its breach. Upon the question whether the receiver can maintain the action, Shearman & Redfield on Negligence, § 560, say: "We think, therefore, upon the principle of these decisions, a telegraph company is responsible for its negligence to a person to whom a message is addressed, as well as to the sender. If it were not so, it is obvious that the receivers of telegrams would often receive great damages without any means of redress." There is ample authority to the same effect: Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S.W. 574; Elwood v. Telegraph Co., 45 N.Y. 549; Ellis v. Telegraph Co., 13 Allen, 227; Telegraph Co. v. Dryburg, 35 Pa. St. 298; Markel v. Telegraph Co., 19 Mo.App. 80; and many others. This, while not the English rule, is stated by Gray, Tel. § 65; 2 Thomp. Neg. 847; 4 Lawson, Rights & Rem. § 1972; and Whart. Neg. § 758, --to be the invariable rule in this country. The following may be summed up as the reasons assigned therefor: (1) That a telegraph company is a public agency, and responsible as such to any one injured by its negligence, or at least it is the common agent of sender and receiver, and responsible to each for any injury sustained by them, respectively, by its negligence. (2) That in a case like this the receiver is the beneficiary of the contract, and the injury, if any, caused by the company's negligence, must be to him. (3) The message is the property of the party addressed in analogy to a consignee of goods. (4) That, upon the face of a message such as this, the sender is the agent of the receiver, and the latter as the principal can maintain an action for breach of the contract, or for a tort, if injury is done him by negligence in performance of the duty contracted for. "The company's employment is of a public character, and it owes the duty of care and good faith to both sender and receiver." 3 Suth. Dam. 314. The author goes on to state that where there is gross or willful negligence the action can be brought either for tort or on contract, and in case of misfeasance the company is liable also to the parties as wrong-doers. Upon authority and reason we think it clear that the plaintiff could maintain the action, and, whether it is an action ex contractu for breach of the contract of speedy and safe transmission, or ex delicto for negligence and violation of the duty

Page 1045

which the defendant owed as a public corporation, or as common agent of sender and receiver, at least nominal damages could be recovered. "The principle that for the violation of every legal right, nominal damages, at least, will be allowed, applies to all actions, whether for tort or breach of contract, and whether the right is personal, or relates to property." 1 Suth. Dam. 11. Where "there is a neglect of duty by a telegraph company and an infraction of the plaintiff's right to have care and diligence used in the sending and delivery of his message, he is entitled to nominal damages at least." Id.

The other question, and the one most earnestly pressed upon our consideration, is whether the plaintiff can recover for mental pain and anguish when there has been no physical injury. In Shearman & Redfield on Negligence, § 605, it is said: "In case of delay or total failure of delivery of messages relating to matters not connected with business, such as personal or domestic matters, we do not think that the company in...

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