Harrison v. . Tel. Co. , 143 N.C. 147 ( 1906 )

This case is reported in 136 N.C. 381, where the facts are stated. On the second trial the Court instructed the jury that, upon all the evidence, plaintiff was entitled to recover only twenty-five cents, the cost of the telegram. Plaintiff excepted, and appealed. In this case the only question before us relates to the measure of damages the plaintiff is entitled to recover, as the negligence of the defendant is very properly admitted. This Court has in its decisions laid down the rule governing the measure of damages and has held that such damages as were not within the contemplation of the parties cannot be recovered. The rule is aptly stated for the (149) Court by Mr. Justice Walker in Williams v. Telegraph Co., 136 N.C. 82: "In order to enable him to recover substantial damages, based upon his mental distress and suffering, it is necessary for him to show that the defendant could reasonably have foreseen from the face of the message that such damages would result from a breach of its contract or duty to transmit correctly, or that it had extraneous information which should have caused it to anticipate just such a consequence from a neglect of its duty towards the plaintiff."

Not only was defendant's agent notified of the important character of the telegram, but on its face it stated the "pregnant facts of death and burial." It notified a stepmother of the death of her stepson, and of the hour fixed for the funeral. We think the learned counsel for the defendant takes a view much too restricted when he contends that the only purpose of the telegram was to notify the mother of the hour of the interment, and that nothing else was reasonably within the contemplation of the parties. The evident purpose was to notify the stricken mother at once that her son was dead, to the end that she might come without delay and have the melancholy pleasure, and perform the scared duty, of being with his remains as long as possible before they were committed forever to the grave.

The fact that the hour fixed for the funeral is stated in the telegram is a mere incident to the general purpose for which the telegram was evidently sent. It was most natural that the plaintiff should desire to know the hour when the burial rites would be performed, but not at all in accord with the promptings of the heart of the average woman that she should be content to put off coming until the last moment. The plaintiff testified she would have come by the first train had she received the telegram when it should, with due diligence, have been delivered to her.

There is no presumption of mental anguish growing out of the (150) relation of stepmother and son, but under our decisions it is a fact the plaintiff may prove, if she can, to the satisfaction of the jury, for the state of the mind is as much susceptible of proof as the condition of the stomach.

The plaintiff's testimony, if believed, tends to prove something more than mere disappointment. She says: "I raised the deceased from the time he was a small boy and he had been with me from then until just before his death. I have no children of my own. He called me mother. I addressed him as son. He was kind to me and treated me with kindness and affection. I regarded him as my own son. I loved him and loved him dearly. I would have come to Salisbury if I had received the message in time. I did come on the first train after it was delivered to me. When I arrived he had been buried. I did not get to Salisbury in time to attend the funeral. It made me very nervous and affected me so that I can never get over it."

We think the cause should be submitted to the jury under proper instructions, to the end that if they are satisfied the plaintiff has really suffered mental anguish, as distinguished from mere disappointment, they may award her such reasonable sum only as will in a measure compensate her for the injury done by the defendant's negligence.

Partial New Trial.