Green v. Western Union Tel. Co

• Decision Date: 15 November 1904
• Citation: 49 S.E. 165,136 N.C. 489
• Court: North Carolina Supreme Court
• Parties: GREEN v. WESTERN UNION TELEGRAPH CO.

49 S.E. 165

136 N.C. 489

GREEN

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina.

Nov. 15, 1904.

TELEGRAM — NEGLIGENCE — PRESUMPTION — MENTAL ANGUISH—MOTION TO NONSUIT—EFFECT.

1. The fact that a message received by a telegraph company for delivery at a certain street number was not delivered until the day following its receipt, when called for by the sendee, raises a presumption of negligence on the part of the telegraph company.

2. Where a message was received by a telegraph company for delivery at a certain street number, but the name of the sendee was incorrectly recorded by the receiving operator, the telegraph company is not excused from its negligent failure to deliver the message at the street number because the mistake was due to the similarity of sound on the telegraph keys between one of the letters of the sendee's name and one of the letters in the name as incorrectly taken from the wires.¶ 2. See Telegraphs and Telephones, vol. 45, Cent Dig. § 61.

3. Mental anguish caused by the negligence of a telegraph company in failing to deliver a message announcing the arrival of a 16 year old girl alone on a midnight train in a town where she was a stranger constitutes a basis for the recovery of damages in an action by her against the telegraph company, though the anguish consisted merely in annoyance resulting from the failure to have some one meet her at the station.

4. A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action admits all the facts alleged in the complaint, construed in the light most favorable to the plaintiff.

Appeal from Superior Court, Halifax County; Moore, Judge.

Action by Willie Hall Green, by her next friend, I. E. Green, against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals. Reversed.

The material facts are thus briefly stated by the defendant: This is the plaintiff's appeal from a judgment sustaining the defendant's demurrer. The complaint states that the plaintiff was a girl of 16, living in Wei-don, the daughter of Isaac E. Green. That the defendant telegraph company maintained offices at Weldon and Columbia, and on September 23, 1903, she left Weldon to go to Spartanburg, S. C, via Columbia, and that it was necessary for her to remain over in Columbia during the night. That the agentof the defendant company at Weldon was acquainted with the young lady and her father, and the father informed the agent that he greatly desired some one to meet his daughter in Columbia. That, immediately after the train on which the young lady was traveling left Weldon, her father, Dr. Green, delivered the following message to the defendant's agent in Weldon, directed to: "Mrs. Jno. B. Lee, 2010 Main Street, Columbia, S. C: Willie leaves here on Coast Line train 39 to-day. Meet her. [Signed] I. E. Green." This message was taken in Columbia as addressed to "Mrs. Knoblee, 2010 Main street" and was not delivered until the next morning, when Mrs. John B. Lee inquired for it at the telegraph office at Columbia. The plaintiff, Miss Willie Green, arrived in Columbia about 12 o'clock the same night, and found no one to meet her. She was naturally disturbed and anxious. The conductor put her in charge of the colored matron at the station in Columbia, the matron secured a hack, and after some delay she was driven to the house of her friend Mrs. Lee. That by reason of this negligence upon the part of the defendant, the plaintiff suffered mental anguish. Upon this the defendant demurred to the complaint, for that it did not state facts sufficient to constitute a cause of action which, under the circumstances set forth, entitled the plaintiff to recover damages for so-called mental anguish, and that the disappointment and annoyance which the plaintiff calls "mental anguish, " arising under the circumstances set out in the complaint, is not a legal ground for damages for mental anguish. His honor sustained the demurrer, and the plaintiff appealed.

Day & Bell, Murray Allen, and W. E. Daniel, for appellant.

F. H. Busbee & Son and R. C. Strong, for appellee.

DOUGLAS, J. (after stating the facts). The defendant in its brief thus states the question intended to be presented: "This case baldly presents the question, which it has been apparent would soon arise, whether the barriers are to be thrown down, and every disappointment, annoyance, or vexation which may arise from a delay or a misdirected telegram can be the subject of an action for mental anguish. In other words, whether any annoyance, disappointment, vexation, or anxiety on account of a missing friend at the station, or from other cause, can be dignified by the name of 'mental anguish, ' and adjudged to rank in the same class with the poignant grief arising from a failure to reach the bedside of a dying wife in time to receive her last adieus." We are fully aware of the importance of the question thus presented, and have given it the careful consideration which it deserves. We do not desire to impose any additional burdens upon telegraph companies or require any unnecessary restrictions, but we cannot ignore the essential purposes of their creation. A telegraph company is a quasi public corporation—private in the ownership of its stock, but public in the nature of its duties. It has all the powers of a private corporation, such as a separate legal existence, perpetual succession, and freedom from individual liability, and possesses, also, in addition thereto, the extraordinary privileges which under our Constitution can be exercised only by such corporations as are organized for a public purpose, and then only when necessary for the proper fulfillment of such purpose. Among the extraordinary privileges enjoyed by such corporations is the condemnation of private property, which can never be taken for a private purpose. The acceptance of such privileges at once fixes upon the corporation the indelible impress of a public use. A telegraph company is essentially public in its duties. Without such public duties there would be neither reason for its creation, nor excuse for its continued existence. In fact, being the complement of the postal service, it is one of those great public agencies so important in its nature and far-reaching in its application that some of our wisest statesmen have deemed its continued ownership in private hands a menace to public interests. Hence it follows, both upon reason and authority, that the failure of a telegraph company to promptly and correctly transmit and deliver a message received by it is a breach of a public duty imposed by operation of law. In the words of a great English judge: "A breach of this duty is a breach of the law, and for this breach an action lies, founded on the common law, which action wants not the aid of a contract to support it." This has been expressly held by this court in Cashion v. Tel. Co., 124 N. C. 459, 32 S. E. 746, 45 L. R. A. 160; Landie v. Tel. Co., 124 N. C. 528, 32 S. E. 886; and Cogdell v. Tel. Co., 135 N. C. 431, 47 S. E. 490.

The demurrer admits all the facts alleged in the complaint, construed in the light most favorable to the plaintiff. It is therefore admitted that the message was received by the defendant, and not delivered until the following day, when called for by the sendee. This of itself raises the presumption of negligence. Sherrill v. Tel. Co., 116 N. C. 655, 21 S. E. 429; Hendricks v. Tel. Co., 126 N. C. 304, 35 S. E. 543, 78 Am. St. Rep. 658; Laudie v. Tel. Co., 126 N. C. 431, 35 S. E. 810, 78 Am. St. Rep. 668; Rosser v. Tel. Co., 130 N. C. 251, 41 S. E. 378; Hunter v. Tel. Co., 130 N. C. 602, 41 S. E. 796; Cogdell v. Tel. Co., 135 N. C. 431, 47 S. E. 490. Aside from this presumption, we think the facts alleged clearly tend to prove negligence on the part of the defendant The telegram was addressed to Mrs. Jno. B. Lee, 2010 Main street. The name of the sendee was changed in transmission to Mrs. Knoblee. The defendant urges in excuse for such negligence the similarity between the telegraphic "J" and "K." This is no legal excuse. Cog-dell v. Tel. Co., 135 N. C. 431, 47 S. E. 490. If the defendant adopts a code intrinsically liable to such mistakes, it should exercise the greater care in preventing them. The defendant's agents could at least have inquired at the street address given in the telegram. Such inquiry would doubtless have resulted in ascertaining the identity of the sendee. Such was the result when Mrs. Lee called for the telegram on the following day. The plaintiff alleges that she suffered mental anguish, and this is also admitted by the demurrer. Aside from this, we think the circumstances in which she was placed may well have caused it. A girl 16 years of age finds herself after midnight in a strange city, riding two miles in a carriage with an unknown driver. It is true, she suffered no insult or physical injury; but the question is, what would be the natural effect upon the mind and nervous system of a child of her age? Nature offers no flower more tender or more fair than budding womanhood, and around it every protection will be thrown by the hand of the law. The defendant was informed of the full purpose of the telegram, and the importance of its immediate delivery. It therefore remains only to consider whether, under the admitted facts, the plaintiff is entitled to recover compensatory damages for the mental anguish she may have suffered as the direct result of the defendant's negligence. We see no reason why she cannot, and we find no authority in this state to the contrary.

It is said by the defendant that "it does not require to be pointed out that if the barriers are once thrown down, and any disappointment, annoyance, or unnecessary alarm occasioned by a delayed telegram shall be allowed to be the subject of damages, every barrier which the law has erected in the limitation of actions for damages will be thrown down, and the waters will be out in...