Gerock v. Western Union Telegraph Co.

Walkee, J., after stating the case: This case was before us at a former term (142 N. 0., 22). We will not review any question which was then decided, as a party who loses in this *7 Court cannot bave tbe case rebeard by a second appeal. Holland v. Railroad, 143 N. C., 435. Tbe Court held in that appeal, upon a motion to nonsuit, that there was evidence sufficient to be submitted to tbe jury upon tbe question of negligence. It is now said by counsel that it did not appear in tbe former appeal that a train left Friday afternoon at 4:22 for Aboskie via New Bern and Goldsboro. But this is a mistake; it does so appear in tbe original case on appeal, tbougb not so stated in tbe opinion. But we tbink tbe judgment should be affirmed on other grounds. There was no special instruction requested as to tbe duty of 0. 0. Gerock to deliver tbe message Friday morning in time for bis brother, M. O. Gerock, to leave Maysville on tbe afternoon train, as will appear hereafter. AVe cannot sustain the motion to nonsuit, nor declare that there was any error in the refusal of tbe first prayer of tbe defendant for an instruction to tbe jury, to tbe effect that tbe plaintiff is not entitled to recover, and they should answer tbe first issue, as to negligence, “No,” for tbe simple reason that we bave before decided that there was evidence of negligence. Besides, there having been evidence of a negligent delay in delivering tbe message until Friday morning, which was not seriously controverted, tbe feme plaintiff was entitled to recover at least nominal damages. Tbe Judge gave tbe first part of tbe second prayer, and charged tbe jury that they could not allow anything for mere disappointment or regret, and explained to tbe jury what constituted mental anguish, for which damages could be awarded. As to tbe second part of tbe second prayer, we are unable to see bow tbe receipt of tbe telegram by J. A. Oopeland from M. 0. Gerock, merely inquiring about tbe condition of his wife, can affect’ her right to recover damages for her mental anguish, if proximately caused by tbe defendant’s negligence. Oopeland was not her agent to receive such a message for her, and be did not receive it in any such capacity, and she cannot be prejudiced by any failure on bis part to communicate its *8 contents to her. It was a mere inquiry, addressed to Copeland, and if she had been informed of its nature it would not have tended to allay her anxiety, but might have increased it. The Judge virtually gave the third instruction requested by the defendant when he told the jury that a delivery to C. 0. Geroclc was, in law, a delivery to the husband of the feme plaintiff, M. O. Gerock. Besides, it is stated in the case that the Judge gave the proper legal definition of negligence and explained clearly to the jury the duty of the defendant to deliver the message, after its receipt at Maysville, to the person to whom it was addressed, within a reasonable time, and no exception was taken to this part of the charge. It is also stated that the Judge charged the jury upon each issue separately. On the first issue he explained the general law of negligence and the duty which the defendant owed the plaintiff, and he arrayed all of the facts and circumstances applicable thereto. No exception was taken to this part of the charge. What the Judge did say to the jury is not fully set out, and we must assume in this Court that he charged cor-r rectly as to all the issues, in the absence of any showing to the contrary, as we do not perceive that there was erroi* in the instructions of the court below, so far as thej are set forth. The defendant did except to the first instruction of the court as to negligence, as indicated above in the statement of the i case, but we can see no error therein, considering the former decision of this Court. The instruction that a delivery to 0. 0. Gerock was a delivery to M. 0. Gerock, and that it was not the duty of the defendant to disclose the contents of the message to 0. O. Gerock when it was delivered to him, was certainly not prejudicial to the defendant. As the charge is not set out in full, we are not informed as to how the court specially instructed the jury with reference to the duty of 0. 0. Gerock as to the delivery of the telegram after he-received it. The Judge may have given very proper instructions upon this question, and we must assume that he *9 did. There was no special instruction regarding that feature of the case requested by the defendant. The plaintiff was, in a legal sense, injured by the negligence of the defendant’s agent in delaying the delivery of the message, and was entitled to nominal damages, and the charge of the court upon the second issue was, in that view, correct, apart from the other considerations we have mentioned. Whether the plaintiff was entitled to substantial damages, if there was any negligence on the part of O. 0. Gerock, is another and different question. We must again assume that the court instructed the jury correctly as to this matter, as the charge is not all set out. The exceptions to the part of the charge relating to damages are not tenable. There was evidence of mental and physical suffering, and the instruction as to mental anguish was not erroneous. As the defendant was guilty of negligence in postponing the delivery of the message until Friday morning, thereby preventing M. O. Gerock from leaving Thursday night, and as this was a breach of duty, ■ entitling the plaintiff, at least, to nominal damages, the negligence of 0. 0. Gerock, if any, in not delivering the telegram to his brother in time for him to take the train that afternoon, related to the question of damages, and could be considered only under the third issue. But we are of the opinion that the delay on the part of 0. 0. Gerock in delivering the 'message was excused by the prior negligence of the defendant in delaying its delivery from the time it was received until Friday morning, which either imposed the duty upon it to notify 0. O. Gerock of the importance of the message, which could have been done without disclosing its contents, or, at least, left it as an open question for the jury to decide whether he acted as a man of ordinary prudence would have done under the same circumstances. The defendant’s operator knew the circumstances, and especially did he know the fact that G. 0. Gerock would not return to his home until late in the afternoon. No instructions were *10 asked upon this aspect of tbe ease, and tbe defendant cannot, therefore, complain of tbe result. Simmons v. Davenport, 140 N. C., 407. Tbe uncontroverted facts of this case entitled tbe plaintiff to a favorable finding upon tbe first and second issues. Tbe conduct of C. O. Gerock did not present a question of contributory negligence or of proximate cause, but of damages, as tbe plaintiff bad already established a good cause of action by showing tbe prior negligence of tbe defendant. This case is not like Lefler v. Telegraph Co., 131 N. C., 355. In that case there was no prior negligence of tbe company. No Error.