Gibbs v. Western Union Telegraph Co.

ClabksoN, J. Interstate messages are governed by the Eederal rule which does not allow damages for mental suffering, pain or anguish, but only where “injury is done to person, property, health or reputation.” It has been the unanimous holding in this jurisdiction that re *521 covery can be bad for mental suffering, pain or anguish for actionable negligence in the transmission of messages. Waters v. Tel. Co., 194 N. C., 188. It will be noted that at the close of plaintiff’s evidence the defendant rested. There was no motion to nonsuit under C. S., 567. This was a waiver as to the insufficiency of the evidence to be submitted to the jury on the question of negligence. Murphy v. Carolina Power & Light Co., ante, 484. The defendant, in apt time, requested the court below to charge the jury: (1) That upon all of the evidence, if believed by the jury, the plaintiff is not entitled to recover damages, and the jury should answer the second issue “No” and the third issue “Nothing.” The court declined and refused to give this instruction, to which the defendant excepted and assigned error. (2) If the jury should find from the evidence, that notwithstanding the negligence of the defendant, the plaintiff by the exercise of due care could have avoided the injury, she would not be entitled to recover damages, and the jury should answer the second issue “No.” The court declined and refused to give this instruction, to which the defendant excepted and assigned error. In the court’s refusal we think there was no error. It is well settled that a cause of action does not arise from negligence alone. It must be actionable negligence. The negligence must be the proximate cause or one of the proximate causes of the injury and damage must result. The burden is on the plaintiff to prove this. “Proximate cause is that which, in natural and continuous sequence, unbroken by any new and independent cause, produces the event, and without which the event would not have occurred.” Hinnant v. Power Co., 187 N. C., at p. 295. See Brewster v. Elizabeth City, 137 N. C., 392. The telegram read “Come at once. Lawrence is seriously shot and can’t live.” The language is clear and unmistakable — it was a death message. In Hunter v. Tel. Co., 135 N. C., at p. 465, citing a wealth of authorities, it is held: “The second exception is to the refusal of the court to charge that the plaintiff could not recover in the absence of any evidence that the defendant knew or was informed of the peculiar and intimate relations existing between the plaintiff and the deceased child. Such instructions were properly refused, as has been repeatedly held by this Court.” In Cashion v. Tel. Co., 123 N. C., 267, it wasiheld that while the relation of brother-in-law is not sufficiently near to raise any presumption of mental anguish, the actual existence of said anguish, if found as a fact by the jury, would entitle the plaintiff to recover substantial damages. In that case the Court says: “It is true that there are certain *522 facts which, when proved, presume mental anguish. The tender ties of love and sympathy existing between husband and wife or parent and child are the common knowledge of the human race, as they are the holiest instincts of the human heart.” Hunter v. Tel. Co., supra; Lawrence v. Tel. Co., 171 N. C., 240. The defendant contends: “When the plaintiff learned of the contents of the message, and that there had been a delay in its transmission and delivery, the law imposed upon her the active duty to take all reasonable steps to avoid injury. That is to say, when the plaintiff learned from another source that her son had been seriously shot in Asheville, she was obliged to make some reasonable effort to reach his bedside before he died, and if, by the exercise of reasonable diligence, she could have reached his bedside before his death and thereby avoided the injury of which she complains, and she failed to do so, the negligence of the defendant, if any, cannot be regarded as the proximate cause of her injury, for she cannot recover from the defendant compensation for an injury which is attributable to her own negligence.” The court below properly defined negligence, proximate cause and damage. On the above aspect, relied on by defendant, charged the jury: “The court charges you as a matter of law that it was the duty of the plaintiff to do whatever she reasonably could to reduce or lessen the damages or to prevent damages entirely resulting from the failure of the defendant company to deliver the message, and if you find that she got the information from other sources that her son had been injured, and got it in sufficient time that she could, in the exercise of reasonable diligence, have got to his bedside before his death, and could have relieved her mind from all mental anguish resulting from the failure of the defendant company to deliver the message, or could have prevented any mental anguish arising on account of such failure to deliver the message, then it would be your duty to answer the second issue ‘No.’ I simply mean by that if you find the defendant company was negligent, even so, if you find that the plaintiff got the information as to her son’s injury and got it in sufficient time that she could have reached his bedside and not have incurred any mental anguish whatever as a result of the failure to deliver the telegram, then the defendant company would not be liable, and it would be your duty to answer the second issue ‘No.’ ” We think the charge ample to cover that aspect of the case. In an action for tort committed or breach of contract without excuse, it is a well settled rule of law that the party who is wronged is required to use due care to minimize the loss. Mills v. McRae, 187 N. C., 707; Construction Co. v. Wright, 189 N. C:, 456; Monger v. Lutterloh, 195 N. C., 274. The burden is on defendant of showing mitigation of damages. Monger’s case, supra, at p. 280. *523 We think there was sufficient evidence to submit tbe case to- tbe jury on negligence, proximate cause and damage. Tbe plaintiff, an old colored woman, was living in Waynesville, N. 0., about 300 yards from tbe defendant company’s office, and .bad been living there for ten years. She was at home 27 December, 1926. Tbe death telegram was sent from Asheville, N. C., early that morning' — • 7:33 a.m. — and received at Waynesville at 8:01 a.m. Trains leave Waynesville for Asheville, some thirty-two miles away, at 11 o’clock a.m. and at 5 o’clock p.m. Plaintiff’s son died at 6:05 a.m. on tbe morning of tbe 28th. Plaintiff went on tbe 11 o’clock train on tbe morning of tbe 28th and got to Asheville some five or six hours after her son bad died. Plaintiff’s cousin told her tbe evening of tbe 27th, after tbe last train bad left Waynesville at 5 o’clock for Asheville, that her son was shot. He saw an account of it in tbe evening paper. Tbe plaintiff was an old woman, some 56 years old. It rained all night. As to her efforts to get to Asheville, other than by train, she testified: “My sister said she would let us have her automobile, but she couldn’t drive it and I couldn’t. I went to Asheville to see my son on tbe first train tbe next day. I tbink it was due to leave Waynesville about 11 o’clock, but it was after that when we left. I did not have any other way of getting to Asheville, except on tbe train.” It is a matter of common knowledge that driving an automobile at tbe best over a mountain road on a rainy night is fraught with danger — liable on such a night to be foggy. This was a matter for tbe jury in connection with all tbe facts and circumstances. Lawrence Gibbs was 39 years old — her oldest son. He often came to see bis mother. After being shot between 2 and 3 o’clock on tbe morning of 27 December be died next morning, tbe 28th, about 6:05. He was conscious and knew people all tbe time. Plaintiff, as to her mental suffering, said: “I never felt right about not getting to tbe bedside of my son before be died, because I tbink I ought to have seen my child, and I could have seen him if I bad gotten tbe telegram. ... I just can’t stand to talk about it.” It was tbe cry of tbe old negro mother for her offspring. She was not there to give consolation in tbe dying hour of her first-born. Her mental suffering cannot, perhaps, be measured in dollars and cents. On tbe question of damages, when a general rule is given in tbe charge correct, it has been repeatedly held by this Court that if defendant desired tbe charge to be more specific, be must request it by proper prayers for instruction. It may be noted that tbe exceptions and assignments of error to tbe charge are not in accordance with tbe rule of this Court. Rawls v. Lupton, 193 N. C., 428. *524 Defendant, a public service corporation, has promulgated strict regulations, which the courts have ordinarily upheld, and the public doing business -with it are bound to obey. It had a fixed charge for a telegram from Asheville to "Waynesville and received its fixed price to deliver a death message calling a mother to the bedside of her dying son. Defendant admittedly breached its contract. Defendant says, “An award of twelve hundred dollars in a case of this kind is such as to shock both the reason and the sense of justice of any fair-minded man.” The court below duly cautioned the jury: “The defendant says it is true that the plaintiff has suffered sorrow and anguish, but says that has resulted from the death of her son, and not because of any negligence on' its part, and I want to caution you right here that in determining plaintiff’s damages, if any, you could not allow anything for mental anguish resulting from the death of her son alone, because the defendant company is not responsible for his death; they did not shoot him. You can only consider such mental suffering as was reasonably within the contemplation of the parties and as a consequence of her failure to see her son and talk with him prior to his death, resulting from the failure of the defendant company to transmit and deliver the telegram.” The matter of damages was for the jury to determine. Mental suffering is as real as physical. This is the experience of every normal person. The case was tried with exceeding care in the court below. In law we find No error. BeogdeN, J., dissenting.