Norris v. Western Union Telegraph Co.

• Decision Date: 26 September 1917
• Docket Number: 25.
• Citation: 93 S.E. 465,174 N.C. 92
• Parties: NORRIS v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

93 S.E. 465

174 N.C. 92

NORRIS v. WESTERN UNION TELEGRAPH CO.

No. 25.

Supreme Court of North Carolina

September 26, 1917

Appeal from Superior Court, Chowan County; Daniels, Judge.

Action by R. L. Norris against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was brought to recover damages of defendant for negligently failing to deliver a telegraphic message, which was filed with the defendant at Sebrill, Va., on August 27 1916, to be transmitted by it to the plaintiff at Edenton, N C., announcing the death of his mother and the day of her funeral. Defendant negligently failed to deliver the message and, by reason thereof, the plaintiff was prevented from attending his mother's funeral. The jury returned the following verdict:

"(1) Did the defendant after the receipt of the message at Edenton, N. C., negligently fail to deliver the same with reasonable promptness as alleged in the complaint? No answer.

(2) If so, did the acts and omission constituting negligence occur in the state of North Carolina? No answer.

(3) If the message had been delivered in a reasonable time could and would the plaintiff have gone to and attended the funeral of his mother, as alleged? No answer.

(4) What damage, if any, has the plaintiff sustained on account of mental anguish caused by the negligence of the defendant? Answer: Nothing."

The court had instructed the jury that they need not answer the other three issues, as to negligence, and so forth. Judgment was entered upon the verdict in favor of the defendant, that the plaintiff take nothing by his action, and that he be taxed with the costs. The prayer of the complaint was confined to damages for the mental anguish resulting from defendant's negligence. Plaintiff appealed.

Ehringhaus & Small, of Elizabeth City, and H. R. Leary, of Edenton, for appellant.

Pruden & Pruden, of Edenton, and S. Brown Shepherd, of Raleigh, for appellee.

WALKER, J. (after stating the facts as above).

This case is governed by our decision at the last term in Meadows v. W. U. Telegraph Co., 91 S.E. 1009. There we held that by the act of June 18, 1910 (36 Stat. 539, c. 309), Congress has taken possession of the entire field of commerce with respect to telegraphs and telephones of an interstate character, and of messages transmitted from one state to another through the medium of the electric telegraph. The plaintiff was consequently denied a recovery, because the case was governed by the federal law. The plaintiff's message was an unrepeated one, and while this court has held, in numerous cases, that the stipulation written on the message, as to repeated and unrepeated messages, and other like stipulations, were void, the highest federal court, in Primrose v. W. U. Telegraph Co., 154 U.S. 1, 14 S.Ct. 1098, 38 L.Ed. 883, had decided that the telegraph company has the right to classify its messages, and the stipulation in regard to repeated messages was reasonable and valid. We simply followed that case, and held, as plaintiff's message was unrepeated, and therefore as there had been no compliance with this material part of the contract with the company, he could not recover under the Primrose Case. The error in that message was a change in the language of the original message, which materially altered its terms.

In the present case the plaintiff demands that he recover damages for mental anguish alone. The Supreme Court of the United States, in Southern Express Co. v. Byers, 240 U.S. 612, 36 S.Ct. 410, 60 L.Ed. 825, L. R. A. 1917A, 197, decided that mental suffering alone did not warrant a recovery of damages, when there was no injury to person, property, health, or reputation. We quote from the opinion of the court, delivered by Justice McReynolds:

"The action is based upon a claim for mental suffering only. Nothing else was set up, and the proof discloses no other injury for which compensation had not been made. In such circumstances as those presented here, the longrecognized common-law rule permitted no recovery; the decisions to this effect 'rest upon the elementary principle that mere mental pain and anxiety are too vague for legal redress where no injury is done to person, property, health, or reputation.' Cooley on

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