Jolley Ex Rel. Jolley v. Western Union Telegraph Co.

Bkogdek, J. Two questions of law arise upon the record. 1. Can an unemancipated minor, living with and being supported by her father, recover for earnings lost by the failure to promptly deliver a telegram? 2. Was the plaintiff entitled to recover more than nominal damages? The plaintiff was a graduate of Meredith College and had prepared herself to teach English and French in the schools of North Carolina. There was no evidence of express emancipation, but evidence of implied emancipation sufficient to support the verdict, was introduced at the trial. The doctrine of implied emancipation is fully recognized in this State. Thus, in Ingram v. R. R., 152 N. C., 762, 67 S. E., 926, the Court said: “It is well settled that if a contract of employment is made by a minor and approved and confirmed by his father, and under such contract the son is to receive the wages earned by him, the father, by approving and confirming the agreement, in effect emancipates his son, as to wages earned by him under the contract, which becomes the property of the son, and not the property of the father. ... If a minor son contracts on his own account for his services with the knowledge of his father, who makes no objection thereto, there is an implied emancipation and an assent that the son shall be entitled to the earnings in his own right.” Lowrie v. Oxendine, 153 N. C., 267, 69 S. E., 131. See, also, Daniel v. R. R., 171 N. C., 23, 86 S. E., 174; Holland v. Hartley, 171 N. C., 376, 88 S. E., 507. The record discloses that the daughter conferred with her father before sending the telegram of acceptance. The Redfern telegram offered the position to the daughter. The father had permitted her to prepare for teaching in her own way and made no objection to her telegram of acceptance. He was appointed next friend to bring the suit in behalf of his daughter, and there is no allegation challenging her right to receive the proceeds of recovery. Consequently, this aspect of the case must be resolved in favor of plaintiff. The defendant insists that the plaintiff, if permitted to recover at all, is not entitled to recover more than nominal damages for two *139 reasons. First, she was offered a position to teacb English, French and dramatics. In her telegram of acceptance she agreed to teach English and French, omitting any reference to dramatics. Second, that there was no formal approval of the employment of the plaintiff by the school board or county superintendent. The testimony does not disclose whether dramatics is an essential part of the course of study in Manteo High School or that this subject was a material term of the agreement. However, the jury in answering the second issue found that the plaintiff was “injured” by the failure to deliver the telegram. There was no objection to this issue. Obviously she could not have been injured by the delay except upon the theory that a valid contract existed between the parties. It cannot be said as a matter of law that the evidence did not warrant such an inference. Upon the facts disclosed at the trial, the applicable principle of law stated by Hoke, J., in Gardner v. Telegraph Co., 171 N. C., 405 is: “A telegraph company sued for breach of contract for failure to properly transmit and deliver a commercial- message may be held liable as in other cases on breach established, for such damages as were in reasonable contemplation of the parties and which are capable of ascertainment with a reasonable degree of certainty.” The defendant relied upon Walser v. Tel. Co., 114 N. C., 440, 19 S. E., 366; Newsome v. Telegraph Co., 137 N. C., 513, 50 S. E., 279; 144 N. C., 178, 56 S. E., 863; 153 N. C., 153, 69 S. E., 10, and Tanning Co. v. Tel. Co., 143 N. C., 376, 55 S. E., 777. All of these cases are distinguished in the Gardner case, supra. Referring to these cases, the Court said: “The cases to which we are referred by counsel for appellee, Newsome v. Telegraph Co., 144 N. C., 178; Tanning Co. v. Tel. Co., 143 N. C., 376; Williams v. Tel. Co., 136 N. C., 82, and Walser v. Tel. Co., 114 N. C., 440, were cases where there was nothing in the message itself or in the facts known or communicated which gave any fair or reasonable intimation that the damages claimed were to be expected or where the evidence did not tend to establish the loss of a definite contract, but only disclosed the preliminary negotiations or trade inquiries from which a contract might or might not arise.” It appears from the evidence that Redfern had authority to employ teachers, and that he had consulted with the county superintendent before offering a position to the plaintiff. These facts readily and reasonably support the inference that Redfern at least was acting within the apparent scope of his authority. No error.