Hunter v. . Telegraph Co.

Although there is no exception to the issues, and apparently no misunderstanding as to their meaning, we think it better to call attention to the inaccuracy of the second issue. It should read as follows: "What damage, if any, has the plaintiff thereby sustained on account of mental anguish?" Or, "What damage, if any, has the plaintiff sustained on account of mental anguish caused by such negligence?" The exact form of the issue is immaterial, but it should directly present the causal relation between the negligence of the defendant and the damages sustained therefrom by the plaintiff. This is especially important in suits involving mental anguish. The defendant did not contribute to (462) the death of the child in any way, and cannot be held responsible for any anguish or sorrow directly resulting from his death. All that it be held liable for is the additional anguish caused by its own negligence, which, in this case, seems to be only the anguish resulting from the failure of the plaintiff to be present at the funeral. We use the word "anguish" as indicating a high degree of mental suffering, without which the plaintiff should not recover substantial damages. Mere disappointment would not amount to mental anguish or entitle the plaintiff to more than nominal damages. In all cases, damages for mental anguish are purely compensatory, and should never exceed a just and reasonable compensation for the injury suffered. As this Court has said in Cashion v.Telegraph Co., 124 N.C. 459, 45 L.R.A., 160, if the defendant has been negligent, it is the duty of the jury "to give to the plaintiff a fair recompense for the anguish she has suffered from such negligence, but from that alone; and in determining the amount they should render to each party exact and equal justice without the shadow of generosity, which is not a virtue when dealing with the property of others."

As both parties seemed to be content with the issues, which may not have caused any confusion in the minds of the jury, we do not feel authorized to set aside the verdict. However, as there might be cases in which such issues would be fatally defective, we deem it better to again call the attention of the profession to the importance of having issues which, either in themselves or in connection with admissions of record, are sufficient to sustain the judgment. Tucker v. Satterthwaite, 120 N.C. 118.

We do not think that the plaintiff can recover his expenses coming to Greensboro, as they do not appear to have been caused in any way by the defendant's negligence. If the defendant had been guilty of no negligence whatever, and the telegram had been promptly delivered, the plaintiff would apparently have incurred the same traveling (463) expenses in coming to Greensboro. Therefore the amount of $18.80 found in the third issue must be stricken out of the judgment.

The defendant contends that, as a matter of law, the plaintiff cannot recover on account of simple inability to attend the funeral of a second cousin, and that if he can so recover he can do so only upon the absolute prerequisite that the defendant knew or was informed of the peculiar relations existing between him and the child. Both of these questions have been decided by this Court adversely to the defendant. In Cashion v.Telegraph Co., 123 N.C. 267, it was held 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 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. . . . But beyond the marriage state, this presumption extends only to near relatives of kindred blood, as acute affection does not necessarily result from distant kinship or mere affinity. A brother's love is sufficiently universal to raise the presumption, but not so with a brother-in-law, who is often an indifferent stranger and sometimes an unwelcome intruder in the family circle. It is true that with him such affection may exist, and in the present case doubtless does exist, but it must be shown."

In Bennett v. Telegraph Co., 128 N.C. 103, the Court, speaking through Clark J., says: "The objection that the relationship of the sendee (father-in-law) does not entitle the plaintiff to recover for mental anguish by reason of failure to be at his daughter's (464) funeral, is answer to the discussion and decision in Cashion v. Telegraph Co., 123 N.C. 267."

This line of decisions has been so recently affirmed and followed in the well-considered opinion in Bright v. Telegraph Co., 132 N.C. 317, that further discussion seems useless. The Court, speaking throughWalker, J., says, on pages 322, 323: "The law does not regard so much the technical relation between the parties or their legal status in respect to each other as it does the actual relation that exists and the state of feeling between them. It does not raise any presumption of mental anguish when there is no relation by blood, but if mental suffering does actually result from the failure to deliver a message where there is only affinity between the parties, it may be shown and damages recovered. A woman suddenly bereft of her husband, and who has no father or other relative or friends to whom she can turn in her distress, except the uncle of her husband, might well call upon him for consolation and assistance, especially when, as is abundantly shown in the evidence in this case, he was her husband's nearest living relative, and had reared and educated him and was `devoted to her husband and herself,' and stood toward them in the place of a parent. She had every right to expect that as soon as the sad news of the death of her husband had reached him, he would come at once to her and give her that comfort, consolation and assistance which she sorely needed. If he was not her father, he entertained for her all of the tender regard and affection of a parent, and was as much interested in her welfare as if he had been her father, and she could therefore reasonably expect that he would do, under the circumstances, precisely what her father would have done if he had been living. It is needless to discuss the question further, as this Court has settled it against the defendant. `We do not mean to say, says Douglas, J., speaking for the Court, `that (465) damages for mental anguish may not be recovered for the absence of a mere friend, if it actually results; but it is not presumed. The need of a friend may cause real anguish to a helpless widow, left alone among strangers with an infant child and the dead body of her husband. In the present case, the plaintiff seems to have received the full measure of Christian charity from a generous community, but it may be that she did not expect it, and looked alone to her brother-in-law, whose absence she so keenly felt. If so, she may prove it,' citing Cashion v. Telegraph Co., 123 N.C. 267."

It will be seen that the cases all proceed upon the principle that the nearness of the relationship is material only where the presumption is relied on; but that mental anguish may exist as a fact where there is no such presumption. In such cases it is a matter of proof, and may be inferred from all the surrounding circumstances, as well as the personal testimony of the plaintiff. The plaintiff is of course an interested witness, and his testimony, like that of all such witnesses, should be scrutinized with care; but if after such scrutiny the jury believe he has testified truthfully, they should give to his testimony the same weight they would to that of any other credible witness. There is no reason why a party should not become a witness in his own behalf, especially in matters peculiarly within his personal knowledge, and the law does not discredit him for doing so, but simply provides for that just scrutiny by which alone the motives of human conduct can be interpreted.

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. Sherrill v. Telegraph Co., 109 N.C. 527; Lyne v. (466)Telegraph Co., 123 N.C. 129; Cashion v. Telegraph Co.,123 N.C. 267; same case, 124 N.C. 459;Laudie v. Telegraph Co., 124 N.C. 528;Hendricks v. Telegraph Co., 126 N.C. 304, 78 Am. St. Rep., 658;Laudie v. Telegraph Co., 126 N.C. 431, 78 Am. St. Rep., 668; Bennett v.Telegraph Co., 128 N.C. 103; Meadows v. Telegraph Co., 132 N.C. 40;Bright v. Telegraph Co., 132 N.C. 317.

In Sherrill's case the telegram was, "Tell Henry to come home, Lou is bad sick." In Lyne's case it was "Gregory met accident; not live more twenty-four or twenty-six hours." In Cashion's case it was "To J. W. Mock. Come at once Mr. Cashion is dead; killed at work. John Payne." In Laudie'scase it was "Frank dead. Meet depot at Wadesboro 8 a. m. Bury him in in Chesterfield; grave three feet." In Hendricks's case it was "Presh died this morning," and "Come quick, will bury Presh tomorrow." In Meadows'scase it was "Will Phillips's wife at point of death." In Bright's case it was "Mr. Bright is dead, will bury at Liberty Sunday morning." In that case, 132 N.C. at page 324, Walker, J., speaking for the Court, says: "It is not a valid objection to the plaintiff's right of recovery that the message did not sufficiently disclose its purpose, or show that the plaintiff desired Cooper to come to Wadesboro. It has been repeatedly decided by this Court, in cases where the relationship of the parties was not disclosed, and the special purport of the message could not possibly have been understood, that it was not necessary for the company to know the relation between the sender and sendee from the terms of the message, or to know anything more than that the message is one of importance, and that this should always be inferred from the fact that it relates to the illness or death of a person. When this is the case, it is sufficient to put the company on notice that a failure to deliver (467) will result in mental suffering, for which damage may be recovered"

The judgment of the court below is

Affirmed.