Kernodle v. . Telegraph Co.

CLARK, C. J., dissenting. Action to recover damages for negligence in failing to deliver the following telegram: "D. W. Kernodle, Bethel, N.C. Ida is sick. Please let Charlie know at once," signed G. R. Danniely. There was evidence tending to prove that the plaintiff arrived at Bethel on the train from the east at 9:20 a. m., and that the telegram was delivered to his brother two minutes after the train left. There is no allegation or charge of negligence in the transmission of the message. It was received at Bethel at 9:05 a. m. From the judgment rendered, the defendant appealed. 1. We think his Honor erred in practically directing the jury that in any view of the evidence they should render a verdict against the defendant upon the issue of negligence. While there may *Page 350 be evidence tending to prove negligence and sufficient for that purpose to be submitted to the jury, it is not such a case as warranted the learned judge below in taking the question from the jury and deciding it himself. It is admitted there was no delay in the transmission of the telegram. The negligence alleged is in the delay in its delivery to D. W. Kernodle, the sendee, after its receipt by the operator at Bethel. We concur (438) in what is said by counsel in reference to the duty of the defendant to provide proper means for the delivery of messages and the transaction of its business, and that if the defendant employs an agent on joint account with the railroad company, it must abide the consequences of a conflict of duty upon the part of the agent. Notwithstanding the law gives the defendant a reasonable time within which to deliver a message (Tel. Co. v. McConnico, 27 Tex. Civ. App. 63; Tel. Co. v.Steinberger, 107 Ky. 469), the law exacts a greater degree of diligence in the transmission and delivery of a telegram like the one in this case than it does an ordinary message, and what would be reasonable time under some circumstances would not be under others. So that the question is, What was a reasonable time for the delivery of this particular telegram? This telegram was in the sendee's hands in 17 minutes after its receipt. It was received at 9:05 a. m., 15 minutes before the train arrived, and was delivered 2 minutes after it left. In order to have benefited Charles R. Kernodle, it must have been delivered in 15 minutes after its receipt. It required at least 3 minutes to copy the message in the office, number and enter it on the delivery book, which left only 12 minutes for its delivery before the arrival of the train. InTel. Co. v. McConnico, supra, it is held that the failure of the agent to deliver a message within 20 minutes after the opening time on Sunday was not negligence, although had the message been immediately delivered the addressee could have caught a train, enabling him to reach his destination in time for the funeral. Under the circumstances, we cannot hold as a matter of law that 12 minutes delay was unreasonable. It should have been submitted to the sound discretion of the jury under appropriate instructions. The judge rested his ruling solely upon the evidence of Harper, the defendant's operator and witness. He testified that he did not see D. W. Kernodle or Charles R. Kernodle until after the train left; that he did not (439) know that D. W. Kernodle, the sendee, was in town, and that the hotel was 100 yards from the depot. What assurance is there that Harper might not have missed the sendee had he started from the office to the hotel at once? The sendee was at the waiting-room at the station just before the train arrived. Harper did not know it. Had he started out to look for Kernodle, how do we know he would have *Page 351 looked for him in the very place where he was? These are considerations that confirm us in the conviction that the question of reasonable time should have been submitted to the jury under the issue of negligence. We have recently considered this matter of "reasonable time" in a case at this term, Claus v. Lee, 140 N.C. 552. The controverted fact in that case was whether the plaintiff had delivered a bill of merchandise in "reasonable time." The court below submitted the question of reasonable time to the jury with appropriate instructions, and refused to decide it as a matter of law. It was practically the only point in the case. All the justices concurred in affirming the judgment and a majority concurred in the opinion. We take it the same rule should apply to the delivery of the telegram, and as to whether, under all the circumstances, it was delivered in a reasonable time or not, the jury should be permitted to determine. The learned Chief Justice, in the case of Kearns v. R. R., 139 N.C. 470, where the judge below, as this Court held, properly nonsuited the plaintiff, said in his dissenting opinion: "If a judge can dispense with a jury trial because he thinks that upon the evidence the verdict ought not to be in favor of the plaintiff, then the judge, not the jury, tries the case and weighs the evidence, whether it is reasonably sufficient to justify a recovery. Why carefully forbid the judge to express an opinion whether a fact is sufficiently proved, if the judge can decide that the evidence is not sufficient to justify a verdict for the plaintiff and refuse to submit the case to the jury?" 2. There is another objection to affirming the judgment. The (440) plaintiff was neither the sender nor the sendee of the telegram. The only way he can recover, if at all, is upon the theory that it was sent for his benefit. He must not only show a negligent act on the part of the defendant, but he must further prove that such act caused his injury. To constitute actionable negligence, not only a negligent act must be proved, but that it caused injury to the plaintiff. If the plaintiff had not arrived at Bethel that Sunday morning, no one will contend that he could have recovered anything because of the delay in not delivering the telegram until two minutes after the train left. Why? Because he would have shown no actionable negligence, no injury caused to himself by the delay. The gravamen of his complaint is that if the telegram had been delivered a few minutes earlier, he would and could have continued on the same train and reached Burlington at 6 p. m. the same day, very much earlier than he did reach there, and thus spent that many more hours with his wife before she died. That is the injury he complains of, and which he says caused him mental anguish. It follows, therefore, if he could not have reached Burlington at the time he claims he could, had he continued on the train, he has suffered no injury by *Page 352 reason of the failure to receive the telegram until two minutes after the train left. The court rested the case on Harper's evidence, which must therefore be taken to be true, and charged the jury, "If you believe the testimony of the defendant's own witness, Harper, it is your duty to answer the first issue `Yes.'" Harper testified that he was familiar with the railroad schedules, and that if the plaintiff had continued his journey home from Bethel on the 9:20 train Sunday, he could not have reached home until Monday. "The Selma connection," he says, "was not made then, and the train does not get to Goldsboro until 3:40 p. m., and the Southern leaves at 1:35 p. m." "The Selma train has been put on since that time." Perhaps we cannot take notice of it in this case, but it is a part of our judicial (441) history that at the time of this occurrence there were no afternoon connections at Goldsboro or Selma between the Coast Line and Southern Railway train, and that the Selma train referred to was put on in consequence of a judgment of this Court filed 13 December, 1904, and that there was no connection at Selma until after that date.R. R. Connection case, 137 N.C. 1. 3. We think the court erred in the charge upon the second issue as to damage. The eighth assignment of error set out in the record is as follows: "The action of the court in charging the jury as follows: `Then it is your duty to consider what damage is a reasonable compensation for the increased anxiety and mental suffering that Charles Kernodle endured in consequence of that telegram not being delivered in time. If he has satisfied you by the testimony of D. W. Kernodle that he could have come on and gotten here that evening at 6 o'clock, then as a matter of course he will be entitled to compensation for the anxiety and suffering that he endured by not being able to communicate with his wife, and not being able to hear from her from that time up to the time he got here the next day.'" The plaintiff alleged and offered evidence that he would and could have come on the 9:20 train from Bethel and reached Burlington at 6 p. m. same day. His Honor assumed as an established fact that plaintiff would have continued on and made the journey to Burlington the same day, and left it to the jury to say only whether hecould have done so. Under the charge, he took from the jury the right to pass on the credibility of the plaintiff's evidence as to whether he would have done so. That fact being one of intention, might well have been contested before the jury. The plaintiff remained in Bethel all day Sunday, instead of driving on to Rocky Mount in the daytime, and drove there at night. He possibly was in doubt whether to go on or to wait and hear again from his wife before doing so. The telegram was (442) not so very alarming. It only stated that "Ida is sick. Let *Page 353 Charlie know at once." It does not say she was dangerously sick and did not ask the plaintiff to come at once. Had the telegram been handed him as he stepped off the train, as it was not so very alarming, he might have done just as he did — wait all day in Bethel to get further news before leaving his business and returning home. What the plaintiff would have done had he received the telegram in time to continue his journey is not admitted — it is contested, and is essentially a matter for the jury to determine from the evidence. The Supreme Court of Texas says in an action against a telegraph company for unreasonable delay in delivering a death message, where the addressee testified she would have gone if she had received the telegram in time: "Still, whether she would have gone is a question for the jury to determine from all the circumstances." Tel. Co. v. May, 8 Tex. Civil Appeals, 176. The identical point is decided in Bright v. Tel. Co., 132 N.C. 326. There, the court permitted Cooper to testify that he would have gone to Wilkesboro had he received the message in time. Mr. Justice Walker says: "It was necessary to prove this fact if the plaintiff sought, as she did by her complaint and evidence, to recover damages for the mental anguish which resulted from his failure to go to Wilkesboro." If Bright's case is to be considered as authority, his Honor plainly erred in not submitting to the jury the question as to what plaintiffwould have done had he received the telegram in time to have taken the train; for that opinion holds it was necessary to prove this fact. This is held to be the law in all jurisdictions that recognize the doctrine of mental anguish. "If the prompt delivery of the message would not have prevented the suffering, the failure to deliver cannot be regarded as a proximate cause of the damages complained of, and there can be no recovery. It is therefore incumbent upon a plaintiff, who claims damages because of being kept from his father's deathbed, to show (443) that he could and would (both) have reached his father before death had the message been delivered promptly." 27 A. E. (2 Ed.), 1075, 1076. The author cites some fifteen adjudications from several different States in support of the text. This question is plainly raised by the eighth assignment of error, and there is nothing in the record or brief which shows that it has been abandoned; nor is there a word or syllable in the entire case which shows that it was admitted by the defendant as an "accepted fact" that the plaintiff would have continued his journey on the train he arrived on had he received the telegram. It is stated in the case that there was evidence tending to prove that he would, but we are unable to find where the plaintiff personally so *Page 354 testified. We assume there was evidence to prove that fact, but it was not submitted, as it should have been, to the jury. As this case is to go back for a new trial, we suggest that the two issues submitted on the first trial do not fully present the question of proximate cause for the jury's determination. The following issues will better present every feature of the case: 1. Was the defendant guilty of negligence in respect to the delivery of the telegram to D. W. Kernodle? 2. If so, was the plaintiff, Charles R. Kernodle, injured thereby? 3. What damage, if any, has plaintiff sustained? New trial.