Eller Et Ux v. Carolina & W. Ry. Co

• Decision Date: 28 November 1905
• Citation: 52 S.E. 305,140 N.C. 140
• Court: North Carolina Supreme Court
• Parties: ELLER et ux. v. CAROLINA & W. RY. CO.

52 S.E. 305

140 N.C. 140

ELLER et ux.

v.CAROLINA & W. RY. CO.

Supreme Court of North Carolina.

Nov. 28, 1905.

1. Judgment—Merger—Splitting Cause of Action.

Where plaintiff brought an action against a railroad for damage to her baggage, which contained a bridal trousseau, and recovered judgment therefor, she could not thereafter maintain a separate action for mental anguish caused by the injury to her trousseau, but she should have collected all the damage to which she was entitled in her original suit.

2. Action—Joinder of Causes of Action— Parties and Interest Involved.

Under Code, § 2G7, authorizing the joinder of certain causes of action, but requiring the causes of action so joined to all belong to one of the classes specified and to affect all the parties to the action, a husband and wife cannot join their separate actions for damages for mental anguish caused by defendant's negligence and recover one sum in satisfaction of their several claims.

3. Damages—Remoteness—Mental Anguish.

Mental anguish, experienced by a prospective groom on the damaging by a railroad of the wedding trousseau of his bride to be. was too remote a form of damage to entitle the groom to recover therefor against the railroad, which did not know of the intended marriage.

Appeal from Superior Court, Catawba County; Councell, Judge.

Action by Albert Eller and wife against the Carolina & Western Railway Company. From a judgment of dismissal, plaintiffs appeal. Affirmed.

On September 5, 1904, the feme plaintiff, then Dora Anderson, was a passenger on defendant's train from Granite Falls to Hickory. She had, as baggage, a valise of the kind usually know as a "telescope, " containing clothing, letters, photographs, and other articles, which was checked to Hickory and should have arrived at its destination on the 5th of said month, but did not arrive until the evening of the 7th. The feme plaintiff was going to Hickory for the purpose of being married to her coplaintiff, Albert Eller, to whom she was at the time engaged. The wedding had been set for the morning of the 6th, but in consequence of the delay in receiving her baggage it had to be postponed until the 7th, as her wedding trousseau was in the valise. When her baggage was tendered to her she refused to take it, as the valise was torn and her clothes were wet and muddy and so badly damaged that they could not be used. She alleges that by reason of the premises she suffered great mortification and mental anguish, and seeks to recover damages on that account. It appears that she had already sued the defendant in an action for the nondelivery of her valise and the damage to the property. That suit was settled, and she received from defendant $30, and the clothes were returned to her. At the close of the testimony, the court, on motion of defendant, dismissed the action. Plaintiffs excepted and appealed.

Self & Whitener, for appellants.

J. H. Marion, T. M. Hufham, and Witherspoon & Witherspoon, for appellee.

WALKER, J. (after stating the case). The general rule in the law of damages is that all damage resulting from a single wrong or cause of action must be recovered in one suit. The demand cannot be split and several actions maintained for the separate items of damage. Plaintiff recovers one compensation for all loss and damage, past and prospective, which were the certain and proximate results of the single wrong or breach of duty. Pierce on Railroads (1881) 300, 301, and note 1. The rule is different where there is a continuing wrong, or the wrong is repeated, as in the case of a nuisance or trespass, or where there is a new trespass distinct from the original one. Hale on Damages, 77, 78. Generally speaking, the redress the law affords for the commission of a wrong is pecuniary compensation. Plaintiff may recover what we call nominal damages, which are really no pecuniary compensation, but which merely ascertain or fix his right or cause of action. Lord Holt has well said: "Surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the con trary; for a damage is not merely pecuniary, but an injury imports a damage when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So, if a man gives another a cuff on the ear, though it cost him nothing— no, not so much as a little diachylon—yet he shall have his action; for it is a personal injury." Ashby v. White, 2 Ld. Raymond, 938 (Smith's L. C. 425). The idea here is, as we see, that there is damage in the contemplation of law, though the injury involves neither loss nor pain, because the man's right to be protected in his person and reputation has been violated. Cooley on Torts (2d Ed.) 69. "When the clear right of a party is invaded in consequence of another's breach of duty, he must be entitled to an action against the party for some amount." Denman, C. J., in Clifton v. Hooper, 6 Q. B. 468. It was held in Fray v. Goules, 1 El. & El. (102 E. C. L.) 839, that an attorney is liable for compromising his client's suit, contrary to instructions, even though it turned out that he acted with reasonable prudence and bona fide and for the actual benefit of his client, there being no loss whatever, much less an appreciable one. It is only when the gist of the action is damage that the maxim "de minimis non curat lex" applies, and that the law no longer distinguishes between no appreciable damage and no damage at all. Hale, Damages, 27, 28. In Bond v. Hilton, 47 N. C. 149, the court, in a full discussion of this question, says: "Wherever there is a breach of an agreement, or the invasion of a right, the law infers some damage, and, If no evidence is given of any particular amount of loss, it gives nominal damages by...