Young v. Western Union Telegraph Co.

• Decision Date: 13 October 1890
• Citation: 11 S.E. 1044,107 N.C. 370
• Parties: YOUNG v. WESTERN UNION TEL. CO.
• Court: North Carolina Supreme Court

11 S.E. 1044

107 N.C. 370

YOUNG v. WESTERN UNION TEL. CO.

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 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 fault ought to escape with mere nominal damages on account of the want of strict commercial value in such messages. Delay in the announcement of a death, an arrival, the straying or recovery of a child, and the like, may often be productive of an injury to the feelings which cannot easily be estimated in money, but for which a jury should be at liberty to award fair damages. Yet, in such cases, the damages ought not to be enhanced by evidence of any circumstances which could not reasonably have been anticipated as probable from the language of the written message." This paragraph was cited and approved by the court of appeals of Kentucky in an opinion filed in June of this year, (Chapman v. Telegraph Co., 13 S.W. 880,) in which the court says: "This seems to us to be the true rule,--one which is in accord with reason, and necessary to a proper protection of individual right, and the interests of the public." In this case the court, held that the plaintiff could recover damages for delay in the delivery of a message announcing the illness and death of the plaintiff's father, and say: "Many of the text-writers say that a person cannot recover damages for mental anguish alone, and that he can recover such damages only where he is entitled to recover some damages upon some other ground. It will generally be found, however, that they are speaking of cases of personal injury. If a telegraph company undertakes to send a message, and it fails to use ordinary diligence in doing so, it is certainly liable for some damage. It has violated its contract; and, whenever a party does so, he is liable at least to some extent. Every infraction of a legal right causes injury, in contemplation of law. The party being entitled in such a case to recover something, why should not an injury to the feelings, which is often more injurious than a physical one, enter into the estimate? Why, being entitled to some damage by reason of the other party's wrongful act, should not the complaining party recover all the damage arising from it? It seems to us that no sound reason can be given to the contrary. The business of telegraphing, while yet in its infancy, is already of wonderful extent and importance to the public. It is growing, and the end cannot yet be seen. A telegraph company is a quasi public agent, and as such it should exercise the extraordinary privileges accorded to it with diligence to the public. If in matters of mere trade it negligently fails to do its duty, it is responsible for all the natural and proximate damage. Is it to be said or held that, as to matters of far greater interest to a person, it...