Penn v. Western Union Tel. Co.

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J. (after stating the facts as above).
• Citation: Penn v. Western Union Tel. Co., 159 N.C. 306, 75 S.E. 16 (N.C. 1912)
• Decision Date: 28 May 1912
• Parties: PENN v. WESTERN UNION TELEGRAPH CO.

75 S.E. 16

159 N.C. 306

PENN v. WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina

May 28, 1912

Appeal from Superior Court, Forsyth County; Lyon, Judge.

Action by Lizzie Penn against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

The evidence tended to show that on the morning of July 3, 1911 at 8 a. m., a message was delivered to defendant company by Herbert Penn, at Roanoke, Va., addressed to plaintiff at Winston-Salem, N. C., announcing the death of a child of Herbert Penn and grandchild of plaintiff, and that same was duly and properly transmitted by defendant to its office at Winston-Salem, and there defendant negligently failed to deliver it to plaintiff, whose place of residence was well known, and she only had notice that such a message was in the Winston office through a postal card from defendant's agent, delivered on the morning of July 5th; and by reason of such negligence and wrong on the part of defendant company and its agent plaintiff was prevented from going to Roanoke and being with her son in the time of his bereavement, and from attending the funeral of her grandchild, etc. Defendant denying negligence, alleged, further, that the contract for transmission and delivery of the message was made in Roanoke Va., and plaintiff's cause of action, if she had any arose in that state, and that, by the law of that state, substantial damages for mental anguish could not be awarded in such an action; and the jury rendered the following verdict:

"First. Did the defendant negligently fail to deliver the message, as alleged in the complaint? Answer: Yes.

"Second. If so, did the acts and omissions constituting negligence occur in the state of North Carolina? Answer: Yes.

"Third. If the message had been delivered in a reasonable time, could and would the plaintiff have gone to Roanoke to be present at the funeral, as alleged in the complaint? Answer: Yes.

"Fourth. Under the law of the state of Virginia, can damages for mental suffering, independent of any injury to person or estate, be recovered against a telegraph company for negligent failure to deliver a message, or for negligent delay in the delivery of a message, although the telegraph company is advised of the character of the message? Answer: No.

"Fifth. What damage, if any, has the plaintiff sustained on account of mental anguish caused by the negligence of the defendant? Answer: $200."

The court, having declined to enter judgment on verdict for defendant, gave judgment thereon for plaintiff, and defendant excepted and appealed.

Geo. H. Fearons and Manly, Hendren & Womble, for appellant.

John M. Robinson and W. Reade Johnson, for appellee.

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

It is well-established doctrine in this state that, under given circumstances, substantial damages for mental anguish may be awarded for wrongful and negligent failure to deliver or correctly transmit a telegraphic message, and this independent of bodily or pecuniary injury. The authorities are also to the effect that such recovery may be had by the sender or the addressee of the message or the beneficiary whose interest in its proper delivery has been sufficiently made known to the company. Christman v. Telegraph Co., 74 S.E. 325, present term; Kivett v. Telegraph Co., 156 N.C. 296, 72 S.E. 388; Woods v. Telegraph Co., 148 N.C. 1, 61 S.E. 653, 128 Am. St. Rep. 581; Dayvis v. Telegraph Co., 139 N.C. 80, 51 S.E. 898; Cranford v. Telegraph Co., 138 N.C. 162, 50 S.E. 585; Green v. Telegraph Co., 136 N.C. 489, 49 S.E. 165, 67 L. R. A. 985, 103 Am. St. Rep. 955, 1 Ann. Cas. 349; Williams v. Telegraph Co., 136 N.C. 82, 48 S.E. 559, 1 Ann. Cas. 359; Bright v. Telegraph Co., 132 N.C. 317, 43 S.E. 841; Kennon v. Telegraph Co., 126 N.C. 232, 35 S.E. 468; Young v. Telegraph Co., 107 N.C. 370, 11 S.E. 1044, 9 L. R. A. 669, 22 Am. St. Rep. 883.

A perusal of the numerous cases on the subject will disclose that this position, allowing recovery for mental anguish, not only obtains with us as a rule of interpretation and adjustment of the rights of the parties growing out of the contract between them, but it has become, also, a part of our public policy, adopted and recognized as necessary to enforce the proper performance of duties incumbent on these companies as public service corporations. Crosswell on Law of Electricity, § 634. From this it has been said to follow that, in a certain class of injuries involving a breach of these duties, an action may lie either in contract or in tort, a position upheld here as a general principle in reference to corporations of this character. Carmichael v. Telephone Co., 157 N.C. 21, 72 S.E. 619; Peanut Co. v. Railroad, 155 N.C. 148, 71 S.E. 71, and authorities cited, more especially the concurring opinions of Associate Justice Allen, and applied directly to telegraph companies in several well-considered decisions in this state; Cordell v. Telegraph Co., 149 N.C. 402, 63 S.E. 71, 22 L. R. A. (N. S.) 540; Green v. Telegraph Co., 136 N.C. 506, 49 S.E. 171, 1 Ann. Cas. 358; Cogdell v. Telegraph Co., 135 N.C. 431, 47 S.E. 490; Landie v. Telegraph Co., 124 N.C. 528, 32 S.E. 886, and sustained in numerous cases elsewhere by courts of recognized authority; McGehee v. Telegraph Co., 169 Ala. 109, 53 So. 205; Gray v. Telegraph Co., 108 Tenn. 39, 64 S.W. 1063, 56 L. R. A. 301, 91 Am. St. Rep. 706; Mentzer v. Telegraph Co., 93 Iowa, 752, 62 N.W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294; McLeod v. Telephone Co., 52 Or. 22, 94 P. 568, 95 P. 1009, 15 L. R. A. (N. S.) 810, 18 L. R. A. (N. S.) 954, 16 Ann. Cas. 1239; Baily v. Western Union, 227 Pa. 522, 76 A. 736, 19 Ann. Cas. 895; Stewart & Co. v. Postal Telegraph Co., 131 Ga. 31, 61 S.E. 1045, 18 L. R. A. (N. S.) 692, 127 Am. St. Rep. 205; Telegraph Co. v. Schriver et al., 141 F. 538, 72 C. C. A. 596, 4 L. R. A. (N. S.) 678; Thompson's Law of Electricity, § 424.

In the present case, the verdict has established an action in tort arising by reason of negligent default on the part of defendant company within the state of North Carolina, and the damages have been properly awarded which have naturally resulted from the wrong; that is, such as were reasonably probable under the circumstances existent at the time, and according to the law of the jurisdiction, statutory or otherwise, where same occurred. Young v. Western Union, 107 N.C. 370, 11 S.E. 1044, 9 L. R. A. 669, 22 Am. St. Rep. 883; Peanut Co. v. Railroad, supra; Gray v. Telegraph Co., supra; Hughes v. Telegraph Co., 72 S.C. 516, 52 S.E. 107; Harrison v. Telegraph Co., 71 S.C. 386, 51 S.E. 119; Gentle v. Telegraph Co., 82 Ark. 96, 100 S.W. 742; Western Union v. James, 162 U.S. 650, 16 S.Ct. 934, 40 L.Ed. 1105; Hale on Damages, p. 50; Jones, Tel. & Tel. Cos. § 518.

It is objected for defendant that the court, in numerous decisions, has said that the rules which obtain in awarding damages for breach of contract were properly applicable to cases of this character, and has repeatedly referred to Hadley v. Baxendale as the controlling authority on the subject. In many of these cases, the action was brought for breach of the contract, and the position as stated was in strictness correct. In others, the rules established or declared in Hadley v. Baxendale were applied, because they afforded a very safe guide to a correct estimate of damages, and because, on the facts as presented, there was no call for making discrimination in the two kinds of action. In so far as mental anguish is concerned, except in cases where punitive damages are sought and allowable, and except as to the time when the relevant circumstances are to be noted and considered, the amount is very much the same, whether the recovery is had in contract or in tort. In the one case, those damages are allowed which were in the reasonable contemplation of the parties when the contract was made, and in the other the consequential losses resulting from the tort, and which were natural and probable at the time the tort was committed. Hale on Damages, p. 48.

Speaking to these principles and their practical application in Scott and Jarnagan's Law of Telegraphy, it is said: "But when the contract between the parties does not show they had in contemplation this wider range in the estimate of damages (in contract) the measure of damages seems to be substantially the same in either kind of action. The true rule for estimating damages in actions ex contractu may be stated thus: The defendant is liable only for such damages as may fairly and substantially be considered as arising naturally, i. e., according to the usual course of things--from the breach of the contract, or--and here is where the measure of damages takes the wider range--for whatever damages may fairly be supposed to have been within the contemplation of the parties. The rule in actions ex delicto is that the damages to be recovered must be the natural and proximate consequence of the act complained of. This is the rule when no malice, fraud, oppression, or evil intent intervenes. The damages which may be considered as arising naturally, according to the usual course of things, from the breach of the contract are substantially the same as damages which are the natural and proximate consequences of the wrong complained of." And in Jones on Telegraph and Telephone Companies, § 518, the author, while saying that, under some circumstances, the recovery in tort may take a wider range, is in support of the proposition that the amount of damages are usually the same.

It was in deference to this view, that, under all ordinary conditions, the damages to be awarded for mental anguish...