Webb v. Western Union Tel. Co, (No. 322.)

• Docket Nº: (No. 322.)
• Citation: 167 N.C. 483, 83 S.E. 668
• Case Date: November 25, 1914
• Court: United States State Supreme Court of North Carolina

83 S.E. 668
167 N.C. 483

WEBB.
v.
WESTERN UNION TELEGRAPH CO.

(No. 322.)

Supreme Court of North Carolina.

Nov. 25, 1914.

1. Appeal and Erroe (8 1068^*)—Harmless Error.

Exceptions to refusal of defendant's prayers become immaterial; the jury having decided issues in accordance with them.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.*]

2. telegrapns and telephones (8 66*)— de-lat in Delivery—Negligence—Evidence.

Delay in delivering a telegram is prima facie evidence of negligence.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. 88 61-63; Dec. Dig. § 66.*]

3. Telegraphs and Telephones (8 69*)—Delay in Delivery—Punitive Damages.

There being simple negligence in the delay in delivering a telegram, but no circumstances of aggravation, or such a reckless disregard of rights as to imply wantonness, bad motive, or malice, punitive damages may not be awarded.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. 8 71; Dec. Dig. 8 69.*1

4. Telegraphs and Telephones (8 6S*)—Delay in Delivery—Actual Damages.

Actual damages for delay in delivery of a telegram include, not only pecuniary loss, but any mental or physical suffering, inconvenience, annoyance, or discomfort.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. §8 69, 70; Dec. Dig. 8 68.*]

5. Damages (8 87*) — Right to Punitive Damages.

There may be right to punitive damages, though the actual damage be trifling or nominal.

[Ed. Note.—For other cases, see Damages, Cent. Dig. 88 188-192; Dec. Dig. § 87.*]

6. Telegraphs and Telephones (§ 66*)—Delay in Delivery—Negligence—Evidence.

What one, in giving a message to a telegraph operator to transmit, told him as to his reasons for wanting it delivered promptly is competent, in an action for delay in delivery.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. 88 61-63; Dec. Dig. 8 66.*]

[83 S.E. 569]

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

Action by John Cox Webb against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Modified.

This is an action against the defendant to recover damages for delay in delivering a telegram, alleged to-have been caused by its negligence. Plaintiff on July 8, 1911, filed with its operator at Morehead City, N. C, a message, addressed to William Faucette, a hackman at Hillsboro, N. C, and of which the following is a copy: "Leaving Morehead this evening, meet me tonight sure." He informed the operator at Morehead City that "he must be sure to get it off at once, as he (the plaintiff) would arrive in Hillsboro very early in the morning, and wished to be met by a hack driver, who ordinarily did not meet that train, and he accepted the message and promised to do the best he could." Plaintiff also stated to the operator that "he lived from 1 to 1 1/4 miles from the station at Hillsboro, and had heavy baggage, and that he had hurt his hands severely on a fishing trip." He left Morehead City on July 8, 1911, at 5 o'clock p. in., taking passage on a Pullman car, and arrived at the station in Hillsboro about 4 o'clock a. m., July 9, 1911; his uncle, J. W. Webb, being with him. "It was about daylight, " he testified. He was worried at not meeting the hackman, and they decided to carry his baggage about 300 yards to the Bellevue Mills, and leave it with the watchman there, which they did, and then he walked home. "He was tired and worn out from the trip." He testified, on cross-examination, that there was a dwelling house about 150 yards from the station, but the occupants were asleep, and that there were other dwellings near by; that the weather was pleasant; and that he had, many times before, walked from his home to the station and from the station to his home. William Faucette, the hackman, testified that he was at the station from 5:15 p. m. July 8, 1911, until the train passed at about 5:38 p. m., and no telegram was delivered to him. Plaintiff telephoned the next morning at 9 o'clock, and inquired if he had received his message, and was told that he had not. He went to the station about 8 o'clock a. m. on the 9th, inquired for the telegram, and was told that there was none for him, and that about 10 o'clock the same day, when he was at the station to meet a train, the message was handed to him. He lived a mile and a half from the station, had a telephone, but did not know whether the agent, who had been there about a month, knew him or not; that he would have met the plaintiff at 4:30 a. m. on the 9th had he received the message in time to do so.

The defendant requested the court to charge the jury: (1) That plaintiff could not recover more than nominal damages, including the cost of sending the telegram. (2) That nominal damages, in this case, meant 25 cents, or some similar amount. (3) As there was nothing in the message to indicate the importance of prompt delivery, and as the attention of the company was in no way called to such matters, the plaintiff cannot recover any damage for mental suffering, and they will not consider it in making up their verdict. The court refused to give the instructions, and defendant excepted. The court charged the jury as follows on the third issue:

"You cannot give punitive damages unless you find that defendant willfully or maliciously or recklessly refused to transmit and deliver the message in question in a reasonable time; but, if you so find, you may, in your discretion, give such damages as you may see fit by way of punishment to the defendant."

Defendant excepted. There was no other exception to the charge, except the one taken to the refusal to instruct as requested by defendant.

The jury returned the following verdict:

"(1) Was the defendant guilty of negligence in failing to deliver the telegram as alleged in the complaint? Answer: Yes.

"(2) What compensatory damages is plaintiff entitled to recover? Answer: 25 cents.

"(3) What punitive damages, if any, is plaintiff entitled to recover? Answer: $100."

The defendant appealed from the judgment thereon.

Geo. H. Fearons, of New York City, King & Kimball, of Greensboro, and Alf. S. Barnard, of Asheville, for appellant.

Frank Nash, of Hillsboro, for appellee.

WALKER, J. (after stating the facts as above). [1, 2] The jury having decided the second issue according to the defendant's prayer for instruction in regard to it, its exception, as to the issue, became immaterial, and those which relate to the first issue are unimportant, as it was not denied that there was delay in delivering the message, and this constituted a prima facie case of negligence (Sherrill v. Telegraph Co., 116 N. C. 655, 21 S. E. 429; Ellison v. Telegraph Co., 163 N. C. 5, 79 S. E. 277), and besides the negligence is apparent from the uncontroverted facts, so that we dismiss those exceptions with this brief comment, and proceed to consider the only remaining question whether the plaintiff was entitled to recover punitive damages.

We have already stated that defendant was guilty of negligence, and, in a legal sense, it was inexcusable. The law will recompense the party, whose right has been violated, by allowing actual damages, but exemplary or vindictive damages are not included therein, but are those in excess of the actual loss and rather designed as a punishment for the willful, wanton, or malicious conduct of one person towards another, and as a warning to other wrongdoers. Being in the nature of a penalty, they should not be awarded, unless there are circumstances of aggravation, or such a reckless disregard of the rights of the

[83 S.E. 570]

plaintiff as to imply wantonness, bad motive or malice. Such damages, says Justice Hoke for the court—

"are not allowed as a matter of course, but, only where there are some features of aggravation, as when the wrong is' done willfully and maliciously, or under circumstances of rudeness or oppression, or in a manner which evinces a reckless and wanton disregard of plaintiff's rights. It is not necessary to submit this element of damage under a separate issue, but there is no objection to this course, and frequently it is desirable, as stated in the principal opinion, there are no circumstances of aggravation, shown in this evidence, which would justify an award of exemplary damages, but, on the issue as to actual or compensatory damages, the jury, under proper instructions, should be directed to award what, in their judgment, is a fair compensation for the plaintiff's wrong under the principle here stated, and not confined to the actual loss in time or money as was done on the former trial." Ammons v. Railroad, 140 N. C. at page 200, 52 S. E. at page 733.

In that case a conductor had ejected a passenger from a train because he had no ticket and had refused to pay 10 cents more than the price of a ticket, which was 40 cents, and which he could not procure on application to the ticket agent, before boarding the train, as the supply of tickets had been exhausted, as he was told by the agent, who promised to see the conductor about it and secure him passage at the ticket rate, which he failed to do. The court unanimously held that he could not recover punitive damages; Justice Brown saying, in the leading opinion (140 N. C. at page 198, 52 S. E. at page 732):

"To entitle a passenger to such damages, his wrongful expulsion from the train must be attended by such circumstances as tend to show rudeness, insult, 'aggravating circumstances calculated to humiliate the passenger' * * * The subject of punitive and compensatory damages has been discussed in many cases in our own reports. In the opinion in this case at the last term, the court called attention to some of the more important. The plaintiff's testimony fails to bring his case within the authority of any of these precedents, so as to justify the awarding of punitive damages. On the next trial of this case, it will be the duty of the trial judge to explain to the...