Summary
In Thompson v. Telegraph Co., 107 N.C. 449, reasserting that this stipulation, as for as delay is concerned, is void, a doubt is intimated as to its validity at all, and it is plainly said, though not necessary to be declared in the decision upon the point involved in that case, "The more recent cases, founded upon the more thorough investigation and thought given to the subject, are to the effect that any stipulation restricting the liability of the telegraph company for negligence, even as to mistakes in transmission, is void."
Summary of this case from Brown v. Telegraph Co.Opinion
September Term, 1890.
Telegraphs — Negligence — Judge's Charge.
1. If a prayer for instruction is given substantially in the charge, though not in the very words asked, it is sufficient.
2. A general exception "to the charge as given," without specifying any particulars, will be disregarded. McKinnon v. Morrison, 104 N.C. 354.
3. When an erroneous prayer asked by appellant is given, he cannot be heard to complain.
4. Mental suffering, caused by negligence and delay in delivery of a telegram not of a pecuniary nature, may be ground of damages, though no physical pain or pecuniary loss is suffered. Young v. Telegraph Co., ante, 370.
5. An omission to charge on a peculiar aspect of the case is not error, unless an instruction was asked and refused. S. v. Bailey, 100 N.C. 528.
6. Where a telegram is sent by a wife about to be confined to summon her husband, and, by reason of negligent delay in the delivery of twenty-four hours, he did not arrive, whereby, the complaint alleges, she suffered more physical pain, mental anxiety and alarm on account of her condition, and sustained permanent and incurable physical injury for want of his presence and services: Held, such damages are not too remote.
7. Where the jury gave substantial damages, which are affirmed on appeal, it is unnecessary to consider the charge given as to nominal damages.
8. Where a telegraph office had the sign of the defendant company over the door, and the operator at that point testified that he paid over all receipts to the treasurer of said company, the office was prima facie an office of the defendant.
9. The stipulation on a telegraphic blank against liability for an unrepeated message does not protect the company when such message is negligently delayed in transmission. If such stipulation has any validity at all, it is only in cases of a mistake in transmitting, and then only when the negligence is slight.
10. Nonresidents can sue in the courts of this State.
(450) ACTION tried before Bynum, J., and a jury, at April Term, 1889, of CASWELL.
J. W. Graham for plaintiff.
G. V. Strong for defendant.
The plaintiff's wife being about to be confined, and at that time in Danville, Va., her son, by her direction, delivered a telegram to agent of defendant company in Danville, Va., addressed to her husband at Milton, N.C. "Father, come at once; mother is sick," and paid for the same. The telegram was not delivered till next day, in the afternoon, a delay, according to the conflict of evidence, of twenty-four to twenty-eight hours. By reason of the delay, the plaintiff complained that on his arrival the child had been born (dead), and his wife had suffered greater pain, physically and mentally, than if he had reached home in time, as he would have done, if the telegram had been delivered with reasonable promptitude, and for lack of his services and presence, and by reason thereof she suffered a premature delivery, and (451) incurred a permanent and incurable physical injury therefrom.
(455) Verdict and judgment for plaintiff. Appeal by defendant.
This is a petition to rehear the case reported in 106 N.C. 549.
Upon a careful review of the former opinion of the Court, we think the petition should be allowed. The fifth paragraph of the charge is a substantial compliance with plaintiff's sixth request to charge. There is no specified exception to the charge. The appellant cannot be heard to complain of an instruction not excepted to, especially when it follows, in substance, his prayer of instruction.
The Court was misled by the somewhat confusing "make-up" of the lengthy record into supposing that defendant's seventh prayer for instruction was passed over unnoticed in the charge, and, while the Court did not pass upon the correctness of the prayer, it held that the court below should have granted or have refused it, so that the jury might have had the benefit of the construction of the law involved in the request. A second examination shows that, in fact, the instruction was given as asked by the defendant. It was an erroneous instruction, as has since been held in Young v. Tel. Co., ante, 370, but, as the error was in favor of the appellant, it cannot be cause of complaint by him.
There was no request to charge that the negligence of the defendant, as shown, was too remote to sustain the action, and an omission to charge upon any particular aspect of a case is not error (456) unless an instruction is asked and refused. S. v. Bailey, 100 N.C. 528, and cases there cited. In fact, however, the damages were not too remote, as we think.
A case similar in some respects to this is Tel. Co. v. Cooper, 71 Tex. 507. It is there said: "If it is made to appear from the testimony that Mrs. Cooper suffered more physical pain, mental anxiety, and alarm on account of her own condition than she would have done if Dr. Keating had been in attendance upon her, and the failure to secure his services is shown to be due to the want of proper care on the part of the defendant's servants, whose duty it was to deliver the message, a fair and reasonable compensation should be allowed for such increased pain and mental suffering." In that case it was a doctor who was telegraphed for, and here the husband, but the gravamen of the complaint is the same — "increased pain and mental suffering," by reason of the absence of the party telegraphed for, who would have been present had not the defendant company negligently delayed the delivery of the telegram.
The instruction as to nominal damages was not excepted to, and, besides, as the jury gave substantial damages, we cannot see how the appellant could have been prejudiced. These views require us to consider the other exceptions, which were not passed upon in the former opinion.
The first and second exceptions were to the evidence, and were without merit. The appellant, on the argument, properly abandoned the third exception, which was for a refusal to nonsuit the plaintiff, on the ground that he was a citizen of Virginia, and, therefore (as was urged below), incompetent to maintain this action in the courts of this State. Walters v. Breeder, 48 N.C. 64; Miller v. Black, 47 N.C. 341.
The fourth exception was to the ruling of the court that, under the evidence, there was prima facie an office of the Western Union Telegraph Company in Milton. The evidence of the agent there was that the office in Milton had the sign of that company over the door, and that the money received for sending or receiving messages (457) was paid by him to the treasurer of that company. Also, it was in evidence that the defendant received the message at Danville for transmission to Milton. We find no error in this ruling. It would seem that it was made upon defendant's contention that there was no evidence to show that it was responsible for the office at Milton.
The defendant's first, second, third, fourth and seventh prayers were given. The sixth prayer was substantially given as above stated. The eight and ninth prayers were substantially given in the charge, and the exception as to them was abandoned in this Court. The fifth exception was for refusal to give the fifth prayer, which was that, as the message was unrepeated, the defendant, as per terms on its blanks, was not liable for delay in transmitting unless guilty of gross negligence. The stipulation as to repeating messages has been held reasonable in some courts as to mistakes in transmission, but not as to delays. In Lassiter v. Tel. Co., 89 N.C. 334, it is held that it is a reasonable requirement "to insure accuracy," but that the exemption from liability for nonobservance of such requirement is "not extended to acts or omissions involving gross negligence, but is confined to such as are incident to the service, and which may occur where there is but slight culpability in its officers and employees." In Pegram v. Telegraph Co., 97 N.C. 57, which was also a case of mistake in the message, the Court reaffirmed Lassiter v. Tel. Co., but holds that what would be ordinary negligence in sending a message apparently of small consequence might be gross negligence where it was manifest that the message was important. It is held that "the stipulation on the company's blanks restricting liability for unrepeated messages is unreasonable and void where the complaint is not of a mistake in the message, but for delay (458) or failure in delivery." W. U. Tel. Co. v. Brosche, 72 Tex. 654; 13 Am. St., 843. The more recent cases founded upon the more thorough investigation and thought given to the subject are to the effect that any stipulation restricting the liability of the telegraph company for negligence, even as to mistakes in transmission, is void. In Smith v. Tel. Co., 83 Ky. 104, it is said: "Telegraph companies are public agents engaged in a quasi-public business; care and fidelity are essential to their character as public servants, and public policy forbids that they should abdicate their duties as to the public by a contract with an individual, who is but one of millions, whose business, perhaps, will not admit either of delay or contest in the courts, but who is compelled to submit to any terms that the company may impose, and the law should not uphold a contract by which public agents seek to shelter themselves from the consequences of their own wrong and neglect." In a still more recent case ( Gillis v. Telegraph Co., 61 Vt. 461 ; 15 Am. St., 917), this is quoted and approved to its full extent, and cases supporting this principle, many in number, and from courts of the highest authority, are given.
It is sufficient, however, for us to say that the present is a case of a delay, not of a mistake, in the transmission, and that the nature of the message and the length of the delay (about twenty-four hours) both make it a case of gross negligence, unless accounted for to the satisfaction of the jury, which was not done.
There was no other exception than those we have passed upon, except the general and vague one "to the charge as given," which is too indefinite to give any information either to the appellee or the Court. According to the rulings of nearly all, if not all, appellate courts, and certainly of this Court, it does not call for consideration. McKinnon v. Morrison, 104 N.C. 354.
On a review of the exceptions of the appellants, we can find (459) no error committed in the trial below.
Per Curiam. Petition allowed.
Cited: Sherrill v. Tel. Co., 109 N.C. 531; Brown v. Tel. Co., 111 N.C. 192; Sherrill v. Tel. Co., 116 N.C. 658; Hansley v. R. R., 117 N.C. 573; Hines v. Vann, 118 N.C. 7; Lyne v. Tel. Co., 123 N.C. 132, 133; Cashion v. Tel. Co., ib., 270; Kennon v. Tel. Co., 126 N.C. 236; Griffin v. R. R., 138 N.C. 59; Shepard v. Tel. Co., 143 N.C. 247; Helms v. Tel. Co., ib., 394; Woods v. Tel. Co., 148 N.C. 10; Cates v. Tel. Co., 151 N.C. 506; Shaw v. Tel. Co., ib., 641, 643; McDonald v. McArthur, 154 N.C. 125; Alexander v. Tel. Co., 158 N.C. 479; Penn v. Tel. Co., 159 N.C. 315; Smith v. Tel. Co., 168 N.C. 520; Ledford v. Tel. Co., 179 N.C. 67.