Cashion v. Western Union Tel. Co

• Citation: 31 S.E. 493,123 N.C. 287
• Parties: CASHION . v. WESTERN UNION TEL. CO.
• Decision Date: 22 November 1898
• Court: United States State Supreme Court of North Carolina

31 S.E. 493

123 N.C. 287

CASHION .

v.WESTERN UNION TEL. CO.

Supreme Court of North Carolina.

Nov. 22, 1898.

Telegram—Delay in Delivery—Da ages—Mental Anguish.

1. Substantial damages may be recovered for mental anguish, irrespective of physical injury, caused by negligently delaying delivery of telegram.

2. Mental anguish entailed by the nonarrival of a brother-in-law, in consequence of negligent delivery of a telegram announcing the death of the sender's husband, must be affirmatively proven in order to recover; it is not presumed as in case of a husband or wife or near blood kindred.

Appeal from superior court, Iredell county; McIver, Judge.

Action by Anna Cashion against the Western Union Telegraph Company. There was a judgment for plaintiff, and defendant appealed. Reversed.

Jones & Tillett, for appellant.

J. P. Gamble and L. C. Caldwell, for appellee.

DOUGLAS, J. This is an action brought to recover damages for mental anguish suffered by the plaintiff from the neglect of the defendant to promptly deliver a telegram. The facts material to its present determination are few. On the 17th day of August, 1897, the husband of the plaintiff was killed while at work in Morganton, N. C, leaving the plaintiff and an infant child. Having no relations in the town, which was the residence neither of her own nor of her husband's family, she caused the following telegram to be sent to J. W. Mock, her brother-in-law, who had been living with her in Morganton, but was then visiting his relatives in Davidson, N. C: "Morganton, N. C, Aug. 17, 1897. J. W. Mock, Davidson: Come at once. Mr. Cashion is dead. Killed at work. John Payne." This telegram was received at the office of the defendant company at Davidson at 5 o'clock the same evening, but was not delivered until the following morning. Mock testifies that, if the telegram had been promptly delivered, he would have ridden through the country to Statesville in time to take the train that arrived at Morganton about 11 o'clock that night. The plaintiff left Morganton the following morning with the body of her husband, and arrived at Statesville about 7 o'clock a. m., where she remained awaiting a train until 7 o'clock that evening. Mock arrived in Statesville about 10 o'clock the same morning, and returned to Davidson that evening with the plaintiff. Issues were submitted and answered as follows: "(1) Was the defendant guilty of negligence as alleged in the complaint? Ans. Yes. (2) What damage, If any, has the plaintiff sustained by reason of the negligence of the defendant? Ans. $1,000."

There was sufficient evidence upon the first issue to be submitted to the jury, and we think it was submitted under proper instructions. After the well-considered opinion delivered at this term in Lyne v. Telegraph Co., 31 S. E. 350, it must be deemed the settled rule of this court that damages may be recovered for mental anguish, irrespective of any physical injury, caused by the negligence of a defendant in failing to exercise reasonable care and diligence in the delivery of a telegram. The principles therein so clearly given need not now be repeated, as they are founded upon a sound public policy as well as natural justice, and are sustained equally by reason and precedent Young v. Telegraph Co., 107 N. C. 370, 11 S. E. 1044; Thompson v. Telegraph Co., 107 N. C. 449, 12 S. E. 427; Sherrill v. Telegraph Co., 109 N. C. 527, 14 S. E. 94; Id., 116 N. C. 654, 21 S. E. 400; Id., 117 N. C. 353, 23 S. E. 277; Havener v. Telegraph Co., 117 N. C. 540, 23 S. E. 457. The doctrine is of comparatively recent origin, but has already been adopted with varying modifications by the states of Alabama, Illinois, Indiana, Iowa, Kentucky, North Carolina, Tennessee, and Texas, and is recognized in 2 Shear. & R. Neg. (5th Ed.) § 756; Thomp. Elect. § 379; 3 Suth. Dam..§§ 975-980; 2 Sedg. Dam. § 894. The rule was perhaps suggested by the following passage in Shear. & R. Neg. (3d Ed.) § 605: "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 be easily estimated in money, but for which a Jury should be at liberty to award fair damages." The doctrine first appears, but only inferentially, in 1877, in Logan v. Telegraph Co., 84 Ill. 468. It was for the first time, as far as we are aware, distinctly enunciated in 1881 in So Relle v. Telegraph Co., 55 Tex. 308. This celebrated case was subsequently distinguished, doubted, modified, and finally practically reaffirmed by the supreme court of Texas. The following suggestion from that opinion strongly commends itself to our approval. It says: "That great caution ought to be observed in the trial of cases like this, as it will be so easy and natural to confound the corroding grief occasioned by the loss of the parent or other relative with the disappointment and regret occasioned by the default or neglect of the company; for it is only the latter for which a recovery may be had, and the attention of juries might well be called to that fact." This is a very important distinction, as mental anguish is naturally so intangible, and, when...