Kennon v. Western Union Tel. Co

• Decision Date: 27 March 1900
• Citation: 35 S.E. 468,126 N.C. 232
• Court: North Carolina Supreme Court
• Parties: KENNON v. WESTERN UNION TEL. CO.

35 S.E. 468

126 N.C. 232

KENNON

v.WESTERN UNION TEL. CO.

Supreme Court of North Carolina.

March 27, 1900.

TELEGRAPHS—DAMAGES FOR NONDELIVERY-MENTAL ANGUISH—INSTRUCTIONS.

1. By reason of defendant's neglect to deliver the message, "Meet me to-morrow, twelve o'clock, " plaintiff was prevented from seeing her aunt until a few minutes before she died, and not until after she had become unconscious. There was no evidence that plaintiff gave defendant any information, upon the delivery of the telegram, that her aunt was sick, or of the purpose of the message, or made any statement whatsoever. Held, that plaintiff could not recover damages for mental anguish.

2. Since promptness in delivery is the very essence of the contract in sending a telegram, the sender can always recover the sum paid for any message which is not delivered promptly.

Appeal from superior court, Guilford county; Timberlake, Judge.

Action by Jennie E. Kennon against the Western Union Telegraph Company for damages for the nondelivery of a telegram. From a judgment for plaintiff, defendant appeals. Reversed.

R. R. King and F. H. Busbee, for appellant.

J. A. Barringer, for appellee.

CLARK, J. The plaintiff sues for damages sustained by herself, as sender, for nondelivery of the following message, sent from Greensboro to her cousin at Reidsville, N. C.: "Meet me to-morrow, twelve o'clock." The complaint avers that the plaintiff's aunt was very ill in Reidsville; that by reason of the nondelivery of the message her cousin (the sendee) did not meet the plaintiff on arrival of the train, who, having an infant with her, was delayed at the station till she could get assistance to carry the child, and she was thereby prevented from getting to her aunt's residence until just after she had dropped into unconsciousness, death occurring in a few minutes; and that the failure to see and talk with her aunt caused the plaintiff great mental anguish. The rule of damages for breach of contract Is such as would arise in the usual order of things from such breach of contract, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it The courts of this and other states which recognize mental anguish as an element of damages have not departed from this rule. It is immaterial, under our system of practice, whether the action is in tort for the negligence in the discharge of a public duty or for breach of contract for prompt delivery, for the recovery in either case is compensation for the injury done the plaintiff, and which was reasonably in contemplation of the parties as the natural result of a breach of the contract or default in discharging the duty undertaken. Young v. Telegraph Co., 107 N. C. 370, 11 S. E. 1044. In Crosw. Electricity, § 649, it is said: "As damages are allowed for pecuniary loss when the subject-matter of the telegram is a pecuniary transaction, so damages should be allowed for injury to the feelings when the subject-matter of the telegram is a transaction involving feelings. Thus messages which, on their face, show that they relate to sickness or death of relatives, give direct information to the telegraph company of the nature of the damages which may be suffered through its negligence." In Thomp. Electricity, § 386, it is said: "As damages for mental suffering, injury to family affection, and the like, are given on the footing of compensation, the rule of Hadley v. Baxendale, 9 Exch. 353, applies in such a sense that the company, in order to be held liable for such damages, must have had notice, either through the wording of the dispatch or otherwise, of the special circumstances in consequence of which a failure to transmit seasonably and correctly will entail mental suffering; and such we find to be the law as recognized in several decisions." In the next section he says: "Such messages may sufficiently disclose their urgency without stating the relationship of the parties;" citing Telegraph Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, which has been cited and approved by this court in Lyne v. Telegraph Co., 123 N. C.129, 31 S. E. 350. In this instance it does not appear from the face of the message that any mental anguish would be likely to result from a failure to deliver it, and there was no evidence that the plaintiff gave the agent of the defendant in Greensboro, whence the message was sent any information concerning the purpose...