Byers v. Southern Express Co

• Citation: 165 N.C. 542,81 S.E. 741
• Decision Date: 13 May 1914
• Docket Number: (No. 593.)
• Court: United States State Supreme Court of North Carolina
• Parties: BYERS. v. SOUTHERN EXPRESS CO.

(165 N.C. 542)

81 S.E. 741

BYERS.

v.SOUTHERN EXPRESS CO.

(No. 593.)

Supreme Court of North Carolina.

May 13, 1914.

1. Compromise and Settlement (§ 12*) —

Scope and Effect.

Plaintiff shipped a casket and other articles to be used for the burial of his wife, which the carrier failed to deliver until after the time for the funeral, necessitating the purchase of a cheaper casket. It subsequently paid plaintiff the value of the casket, taking a receipt "in full payment for one coffin." Held, that this payment and receipt did not defeat a recovery for damages from the delay in delivery, including damages for mental anguish.

[Ed. Note.—For other cases, see Compromise and Settlement, Cent. Dig. §§ 54-74; Dec. Dig. i 12*1

2. Carriers (§ 158*)—Carriage of Goods-Limitation of Liability.

Under the Carmack Amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104. § 20, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]), making carriers liable to the holder of any bill of lading for any loss, damage, or injury to the property covered thereby, and providing that no contract, receipt, etc., shall exempt carriers from such liability, construed as permitting carriers to limit their liability for damages to the property, a carrier could not limit its liability for special damages from a delay in delivery, including damages for mental anguish; they not being damages to the property.

[Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 663-667, 699-703%, 708-710, 71S, 718y₂; Dec. Dig. § 158.*]

Brown and Walker, JJ., dissenting.

Appeal from Superior Court, Buncombe County; Bragaw, Judge.

Action by John Byers against the Southern Express Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Martin, Rollins & Wright, of Asheville, for appellant.

Mark W. Brown, of Asheville, for appellee.

CLARK, C. J. The plaintiff's wife died at Hickory Grove, S. C, while on a visit to her mother, and plaintiff, who lived in Asheville, purchased there a casket, robe, gloves, hose, and other articles suitable for her burial, and shipped them by the defendant to Hickory Grove, notifying the express agent that these articles were to be used in the burial of his wife the following morning. The agent promised to ship the casket and other articles on the first train, and guaranteed that they would be delivered that night or early the next morning in full time for the funeral. The distance via Spartanburg and Blacks-burg to Hickory Grove was 112 miles, and, if the casket had left Asheville by the first train at 4:10 p. m., it would have reached its destination the same night. The casket had been delivered to the defendant early that morning. If it had been held by defendant at Spartanburg all night and then been shipped to Blacksburg at 7:30 the following morning on train 36, which carried the express, it would have reached Blacksburg at 8:33 a. m., and would have left there at 9:05 a. m., reaching Hickory Grove at 9:37 a. m., in ample time for the funeral at 11 a. m. The distance via Marion was 124 miles, and, if the casket had been shipped on the first train over that route, it would have left Asheville at 2:25 p. m., reaching Hickory Grove at 8:06 p. m. the same day. Instead of shipping the casket by either of these two routes, it was sent via Columbia, S. C, a distance of 300 miles, and could not have reached Hickory Grove till 5:25 p. m. the following day. As a matter of fact, the casket did not reach Hickory Grove until Wednesday, the second day after it left Asheville. The funeral was on Tuesday. The purchaseand delivery to the defendant was early Monday morning. The plaintiff left Asheville Monday night via Spartanburg, and, when he reached Hickory Grove Tuesday morning, he found that the casket had not arrived. The funeral which had been fixed for 11 o'clock was then changed to 4 p. m. The casket still did not come, and finding that the body could not be held longer, by the aid of a friend he procured a cheap casket, but without proper burial clothing for his wife, and the' burial took place.

The above is condensed from the uncontradicted testimony. The defendant admits the negligence, indorsing on its voucher that the "casket was misrouted from Asheville, N. C, by Transfer Clerk Deweese." The defendant put in evidence the following receipt: "Received at Asheville on May 25, 1912, $64.17; said amount being in full payment for one coffin delivered to the Southern Express Co. at Asheville, N. C, on April 1, 1912, by John Byers, to be shipped to Sarah Moore, Hickory Grove, S. C." On this was a memorandum that the casket had been misrouted and was refused on that account on arriving at destination too late for the funeral, and that the defendant had returned it to Asheville and sold it for $15 to the company from whom Byers had bought it The defendant claims that the acceptance of payment for the value of the casket should be construed as a waiver by plaintiff of his right to other damages. The receipt does not say so, but recites that it is "in full payment for one coffin." The uncontradicted evidence of the plaintiff is that the defendant "paid him for all the money he paid out on the casket and other things, but did not pay him anything for the damages." It was competent thus to explain the receipt, if necessary. Counsel for the defendant also admitted that it was fully understood by plaintiff's attorney and the agent of the defendant at the time the receipt was signed that it did not cover any claim for the damages. The record shows as follows: The court said, speaking to defendant's counsel, "You gentlemen do not claim that you settled anything that is covered by this complaint?" To which Mr. Martin replied, "No, your honor, we do not claim that we paid anything for mental suffering.'"

There was evidence of mental suffering; but it would have been inferred as a matter of law upon the circumstances of this case. Under the law of this state, where the contract of shipment was made, the plaintiff is entitled to recover such damages. Thompson v. Express Co., 144 N. C. 389, 57 S. E. 18; Penn v. Telephone Co., 159 N. C. 306, 75 S. E. 16, 41 B. R. A. (N. S.) 223. Upon all the authorities damages for mental anguish are compensatory damages. Carmichael v. Telephone Co., 157 N. C. 25, 72 S. E. 619, 39 L. R. A. (N. S.) 65, Ann. Cas. 1913B, 1117, where the authorities are summed up by Hoke, J., citing, among other cases, Osborn v. Leach, 135 N. C. 628, 47 S. E. 811, 66 L, R. A. 648, and Head v. Railroad, 79 Ga. 358, 7 S. E. 217, 11 Am. St Rep. 434, quoting Bleckley, C. J., In the latter case, who says: "Wounding a man's feelings is as much actual damages as breaking his limb. The difference is that one is internal and the other external, one mental, the other physical. * * * At common law compensatory dam ages include, upon principle and * * * upon authority, salve for wounded feelings, and our Code had no purpose to deny such damages where the common law allowed them." It makes no difference, as this court has always held, whether the action or claim to recover damages for mental suffering is based upon breach of contract or upon tort. Penn v. Telephone Co., 159 N. C. 309, 75 S. E. 16, 41 L. R. A. (N. S.) 223, and numerous cases there quoted. In Thompson v. Express Co., 144 N. C. 392, 57 S. E. 19, it was held in the opinion by Hoke, J., that the claim of damages for mental anguish "is not a separate cause of action at all, but only as a further element of damages." It follows, therefore, that settlement as to the coffin, which was paid for by the defendant and resold to the original owner, was in no wise a settlement of "the further element of damages." Besides, as counsel frankly admitted, there has been in fact no settlement as to damages for mental anguish. The plaintiff has received no compensation for such damages, which he is now suing for.

The only other point raised is...