Dayvis v. Western Union Telegraph Co.

• Decision Date: 26 September 1905
• Citation: 51 S.E. 898,139 N.C. 79
• Parties: DAYVIS v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

51 S.E. 898

139 N.C. 79

DAYVIS v. WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina

September 26, 1905

Appeal from Superior Court, Beaufort County; Long, Judge.

Action by J. L. Dayvis against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Brown and Connor, JJ., dissenting.

Merely mental anguish caused by a telegraph company's failure to deliver or delay in delivering a message is actionable.

There was testimony to the effect that on the morning of June 26 1904, plaintiff's wife left Durham, N. C., to go to Washington, N. C., to which place her husband had recently moved his residence; that in the regular course of travel Mrs. Dayvis would have reached Washington on the afternoon of the 26th, at about 6 o'clock; that she and two children who accompanied her were all sick, and she had written to the plaintiff, her husband, on Friday before leaving Durham on Sunday; that the plaintiff had sent his wife enough money to defray her expenses from Durham to Washington, via Selma and Rocky Mount; that at Rocky Mount, by misdirection of a railroad station employé, she and her children were put on the train going to Weldon, where they arrived about 5 p. m. and were unable to go on to Washington till the afternoon of the following day, June 27th; that the plaintiff, who was expecting his wife and children on the afternoon train on June 26th, had gone up on the morning train to meet them and had boarded the returning train in the afternoon, expecting to meet them at a station called Pactolus; that he inquired for them and could get no information; that he looked through the train and found their trunk checked through from Durham to Washington; that immediately on arriving at Washington he went to his hotel and inquired for a telegram, and none had been received; that he then went to the telegraph office and it was closed; that this was about 6:30; that the train had arrived on time at about 6:20; that he endeavored to get a telephone communication with his wife and children, but failed, and could hear nothing from them until their arrival on the train of the afternoon of the 27th, as stated; that he was aware they were sick and had only money enough to pay their way to Washington, and he suffered great distress and mental anguish by reason of his uncertainty as to their whereabouts, etc.; that the plaintiff had been a resident in Washington about one month, was at the Hotel Pamlico, and had received telegraphic messages at that place during his stay. Mrs. Dayvis testified: That, when she arrived at Weldon with her children at 5 p. m. June 26th, she went to the office of defendant company and wrote a message to her husband on one of its blanks as follows "J. L. Dayvis, Washington, N.C. Got left. Be there at 7:30 o'clock tomorrow. [ Signed] D." She delivered it to the operator. She stated that she told the operator that she had been thrown over in Weldon, had two children with her who were sick, her husband was to meet her, and would be worried unless he got the message, and told him to be sure to get it off right away, and he said he would; that she came back in an hour and a half, and asked the operator if he had sent the message, and he said he got it off all right; that the message was never received by the plaintiff. The operator testified that the message was given him by Mrs Dayvis at 5:12 in the afternoon of the 26th, and he sent it on not long after; that, not being able to tell, when he read the message, whether it was signed "D." or "W.," he carried the same to the hotel where she was, and asked about it, and was told the letter was "D."; that she did not tell him who J. L. Dayvis was, nor what her name was, nor that she and her children were sick, nor that her husband would meet her and be worried if he did not receive the message; that all she said was that she had got on the wrong train at Rocky Mount, and she asked the witness to get the message off promptly; that she came back about 6 o'clock, or later, and asked if the message had been sent and heard from; that he replied, "Sent but not heard from." Under the charge of the court there was a verdict and judgment for the plaintiff, and the defendant excepted and appealed.

F. H Busbee & Son, Small & McLean, and Murray Allen, for appellant.

J. D. Grimes and W. B. Rodman, for appellee.

HOKE, J. (after stating the case).

At the close of the plaintiff's testimony, and again at the close of the entire testimony, there was a motion to nonsuit by the defendant, and exception duly taken. The decisions of this court have established the principle that the addressee of a telegram, where there has been a wrongful failure to deliver or negligent error in transmitting the message, may under certain circumstances recover compensatory damages for mental anguish, where the message is for his benefit or concerns his domestic or social interests; and this, independent of any bodily or substantial pecuniary injury. Young v. Telegraph Co., 107 N.C. 370, 11 S.E. 1044, 9 L. R. A. 669, 22 Am. St. Rep 883; Sherrill v. Telegraph Co., 109 N.C. 527, 14 S.E. 94; Kennon v. Telegraph Co., 123 N.C. 232, 35 S.E. 468; Wadsworth v. Telegraph Co., 86 Tenn. 695, 8 S.W. 574, 6 Am. St. Rep. 864. If mental anguish is shown to exist, it is not required for a recovery that the claimant should be a very near relative. Bright's Case, 132 N.C. 317, 43 S.E. 841; Hunter's Case, 135 N.C. 458, 47 S.E. 745. Nor is it necessary that the telegram should contain a message concerning sickness or death. Green's Case, 136 N.C. 489, 506, 49 S.E. 165, 67 L. R. A. 985, 103 Am. St. Rep. 955. It is necessary, however, that the grievance complained of should amount to a high degree of mental suffering, within the natural and correct definition of mental anguish, and not consist simply of annoyance or disappointment and regret. Hancock's Case, 137 N.C. 497, 49 S.E. 952. The decisions further hold that, before a recovery can be had on that account, the defendant company must be notified that mental anguish will naturally and reasonably follow as a result of its misconduct, either from the character and contents of the message itself, or from facts within its knowledge or brought to its attention at the time of accepting the message for transmission, or certainly in time to have enabled it to avoid the consequence complained of by due care and diligence. Kennon's Case, supra; Williams' Case, 136 N.C. 87, 48 S.E. 559; Green's Case, 136 N.C. 489, 49 S.E. 165, 67 L. R. A. 985, 103 Am. St. Rep. 955; Cranford's Case, 138 N.C. 162, 50 S.E. 585. The judge told the jury that such notice must be brought home to the defendant, and under his charge the jury have necessarily decided that the plaintiff's version as to what took place, at the time the telegram was handed to the defendant's agent, was the true one.

Applying these principles to the facts of the case before us, the plaintiff has made out a cause of action. The testimony of Mrs. Dayvis on that point was as follows: "When I got to Rocky Mount I went to Weldon. I got to Rocky Mount about 2 p. m. I got to Weldon about 5 p. m., registered at the hotel, went to the telegraph office [identifies the message written out], gave it to the operator, told him I had been thrown over in Weldon, had two children with me, they were sick, my husband was to meet me, and would be worried unless he got the message. I told him to be sure and get it off right away, and he said he would. (The defendant in apt time objected to all the conversation with the defendant's agent. Objection overruled, and defendant excepted.) I came back in an hour and a half, and asked the agent if he had heard anything from the message, and he said he had not yet; and I asked him if he had sent it off, and he said he got it off all right." The court is of opinion that here was ample testimony to notify the defendant that, if the message was not delivered and the husband was thereby left in ignorance of the whereabouts and condition of his wife and children, it would be to him a matter of grave concern, and might well result in actionable suffering and mental anguish. There was no error in overruling the defendant's motion to nonsuit.

In some of the cases on the subject of mental anguish, there is a strong intimation that the action should be in tort, as involving a breach of public duty, and there is high authority to the effect that only in this character of action can a suit be sustained by the addressee of a message. In awarding the damages to be recovered, however, where the right to damage has been established, the decisions of this court have thus far uniformly applied the law governing cases for breach of contract, and this course seems very generally to have obtained. 27 Am. & Eng. Enc. (2d Ed.) 1059; Thompson on Law Elec. § 386. In the examination of Mrs. Dayvis, witness for plaintiff, she was asked by the plaintiff's counsel if she and her children had anything to eat in Weldon, the day they were there, and the witness replied: "Only a few cakes, and a couple of coca colas." The witness was then asked why, and she replied, ""Because they had no money." This evidence was admitted over the objection by defendant, and the defendant excepted. This is an action by Mr. Dayvis to recover damage for mental anguish, by reason of his just alarm from being left uninformed as to the placing and condition of his wife and children. The actual privation and suffering of Mrs. Dayvis and her children are not pertinent to the inquiry. The testimony, if competent at all, could only have been so held as corroborative evidence, and under the circumstances of the case the court inclines to the opinion that the admission of the testimony would be reversible error, but for...