Penn v. Western Union Telegraph Co.

Hoke, J.,

after stating tbe case: It is well-established doctrine in this State that under given circumstances substantial damages for mental anguish may be awarded for wrongful and negligent failure to deliver or correctly transmit a telegraphic message, and this independent of bodily or pecuniary injury. The authorities are also to the effect that such recovery may be had by the sender or the addressee of the message or the beneficiary whose interest in its proper delivery has been sufficiently made known to the company. Christmon v. Telegraph Co., ante, 195; Kivett v. Telegraph Co., 156 N. C., 296; Woods v. Telegraph Co., 148 N. C., 1; Dayvis v. Telegraph Co., 139 N. C., 80; Cranford v. Telegraph Co., 138 N. C., 162;, Green v. Telegraph Co., 136 N. C., 489; Williams v. Telegraph Co., 136 N. C., 82; Bright v. Telegraph Co., 132 N. C., 317; Kennon v. Telegraph Co., 126 N. C., 232; Young v. Telegraph Co., 107 N. C., 370. A perusal of the numerous cases on the subject will disclose that this position allowing recovery for mental anguish not only obtains with us as a rule of interpretation and adjustment of the rights of the parties growing out of the- contract between them, but it has become also a part of our public policy, adopted and recognized as necessary to enforce the proper performance of duties incumbent on these companies as public-service corporations. Crosswell on Law of Electricity, sec. 634. From this it has been said to follow that in a certain class of injuries involving a breach of these duties, an action may lie either in contract or in tort, a position upheld here as a general principle in reference to corporations of this character. Carmichael v. Telephone Co., 157 N. C., 21; Peanut Co. v. R. R., 155 N. C., 148; and authorities cited, more especially the concurring opinions of Associate Justice Alien, and applied directly to telegraph companies in several well-considered decisions in this State. Cordell v. Telegraph Co., 149 N. C., 402; Green v. Telegraph Co., 136 N. C., 506; Cogdell v. Telegraph Co., 135 N. C., 431; Landie v. Telegraph Co., 124 N. C., 528, and sustained in numerous cases elsewhere by courts of recognized authority; McGehee v. Telegraph Co., 169 Alabama, 109; Gray v. Telegraph Co., 108 Tenn., 39; Mentzer v. Telegraph Co., 93 Iowa, 752; McLeod, v. Telephone Co., 52 Oregon, 22; Baily v. Western Union, 227 Pa., 522; Stewart & Co. v. Postal Telegraph Co., 131 Ga., 31; Telegraph Co. v. Schrewer, 141 Fed., 538; Thompson’s Law Electricity, sec. 424.

In the present case the verdict has established an action in tort arising by reason of negligent default on the part of defendant company, within the State of North Carolina, and 'the damages have been properly awarded which have naturally resulted from the wrong, that is, such as were reasonably probable under the circumstances existent at the time and according to the law of the jurisdiction, statutory or otherwise, where same occurred. Young v. Telegraph Co., 107 N. C., 370; Peanut Co. v. R. R., supra,; Gray v. Telegraph Co., supra; Hughes v. Telegraph Co., 72 S. C., 39; Harrison v. Telegraph Co., 71 S. C., 386; Geuth v. Telegraph Co., (Ark.) 100 S. W., 742; Western Union v. James, 162 U. S., 650; Hale on Damages, p. 50; Jones Telegraph and Telephone Companies, sec. 518.

It is objected for defendant that the court in numerous decisions has said that the rules which obtain in awarding damages for breach of contract -were properly applicable to cases of this character and has repeatedly referred -to Hadley v. Baxendale as the controlling authority on the subject. In many of the cases the action was brought for breach of the contract, and the position as stated was in strictness correct. In others the rules established or declared in Hadley v. Baxendaíe were applied because they afforded a very safe' guide to a correct estimate of damages and because on the facts as presented there was no call for making discrimination in the two kinds of action. In so far as mental anguish is concerned, except in. cases where punitive damages are sought and allowable and except as to the time, when the relevant circumstances are to be noted and considered, the amount is very much the same whether the recovery is had in contract or in tort. In the one case those damages are allowed which were in the reasonable contemplation of the parties when the contract was made, and in the other the consequential losses resulting from the tort and which were natural and probable at the time the tort was committed. Hale on Damages, page 48.

' Speaking to these principles and their practical application in Scott and Jarnagan’s “Law of Telegraphs,” it is said: “But when, tbe contract between tbe parties does not show they bad in contemplation this wider range in tbe estimate of damages (in contract), tbe measure of damages seems to be substantially tbe same in either kind of action. Tbe true rule for estimating damages in actions ex contractu may be stated thus: Tbe defendant is liable only for such damages as may fairly and substantially be considered as arising naturally, i. e., according to tbe .usual course of things, from tbe breach of tbe contract, or — and here is where tbe measure of damages takes a wider range — for whatever damages may fairly be supposed to have been within tbe contemplation of tbe parties. Tbe rule in actions ex delicto is that tbe damages to be recovered must be tbe natural and proximate consequence of tbe act complained of. This i^tbe rule when no malice, fraud, oppression, or evil intent intervenes. Tbe damages which may be considered as. arising naturally, according to tbe usual course of things, from tbe breach of tbe contract, are substantially tbe same as damages which are tbe natural and proximate consequences of tbe wrong complained of.” And in .Jones on Telegraph and Telephone Companies, sec. 518, tbe author, while saying that under some circumstances tbe recovery in tort" may take a wider range, is in support of tbe proposition that tbe amount of damages are usually tbe same. It was in deference to this view, that, under all ordinary conditions, tbe damages to be awarded for mental anguish are practically one and tbe same, whether tbe action be in contract or in tort, that tbe Court has thus far allowed tbe rules in Hadley v. Baxendale to prevail; but it was never intended in cases requiring that tbe distinctions between tbe two classes of actions be observed, that when a tort was clearly established and committed within this jurisdiction that tbe usual rules for awarding damages in actions of that character should be modified or ignored. Thus in Dayvis v. Telegraph Co., supra, tbe Court, in speaking to this position, said:

“In awarding damages for mental anguish, however, when tbe right thereto has been established, the decisions of this Court have thus far uniformly applied the law governing cases of breach of contract.” And in Williams v. Telegraph Co., 136 N. C., 84, Associate Justice Walicer, delivering tbe opinion, said: “In order to ascertain the damages which a plaintiff, who sues for a breach of contract, is entitled to recover, the rule laid down in Hadley v. Baxendale has generally been adopted as the one which will give the complaining party a fair and reasonable recompense for any loss he may have sustained or for any injury he may have .suffered” — opinions giving indication that when the action is for a tort and under some conditions the rules applied are not, necessarily, exclusive, and those which ordinarily obtain in actions of tort might, in proper cases, be applied.

Pursuing this same objection, there Vere several decisions called to our attention which, it is claimed, are in express denial of plaintiff's right to recover to the present verdict, notably Hancock’s case, 137 N. C., 497; Hall's case, 139 N. C., 369. Bryan’s case, 133 N. C., 603, and Johnston’s case, 144 N. C., 410, and the doctrine of stare decisis is earnestly invoked in support of defendant’s position.

In Hancock’s case, supra, the action was by the sender and , was brought upon the contract, and it does not definitely appear that the default occurred in this State. In Hall’s case, supra, the right to recover for mental anguish was left' as an open question to be determined on the facts as they should be ultimately made to appear. In Bryan’s case the action was upon breach of the contract, and recovery was sustained on the express ground that the contract was made in this State. In Johnston’s case, 144 N. C., 410, the language of opinion is much broader and seems to be an authority sustaining defendant’s position, but a perusal of the case will clearly disclose that the learned judge was treating- it throughout as an action for breach of the contract and the decision was made.to rest on .Bryan’s case and other decisions applying the familiar principle that, in actions for breach of contract, when same originates in one State and is to be partly performed there, the laws of such State are ordinarily allowed as controlling on the question of interpretation and adjustment of the rights of the parties. These cases, then, when properly, understood, do not, in our opinion, call for or permit an application of the doctrine of stare decisis. In Mason v. Cotton Co., 148 N. C., 509, speaking of this doctrine of stare decisis and its proper application, tbe Court said:

“We are not insensible to tbe great importance of tbe doctrine of stare decisis, a doctrine of recognized value in all countries whose jurisprudence, like our own, is founded so largely on precedents. We know that tbe courts in such countries, as a general rule, will adhere to a decision found to be erroneous, when it has been acquiesced in for a great length of time, so as to become accepted .law, constituting a rule of property. And there are other conditions, restricted in their nature, where the doctrine may be'properly applied, but none of them require or permit that a court should adhere to a decision, found to be clearly erroneous, which affects injuriously a general business law, and under the circumstances indicated here. As it has been well said, ‘Where vital and important public or private rights are concerned, and the decisions regarding them are to have a direct and permanent influence upon all future time, it becomes the duty as well as the right of the Court to consider them carefully and to allow no previous error to continue, if it can be corrected. The foundation of the rule of stare decisis was promulgated on the ground of public policy, and it would be a grievous mistake to allow more harm than good to come from it.’ 26 Am. and Eng. (2d Ed.), p. 184”; and the important and valuable case of Hill v. R. R., 143 N. C., 539, is in illustration of the same view.

Recurring to the position sustained by these authorities, and more especially to the citation from 26 A. and E., supra, even if the doctrine of stare decisis was presented, it should not be allowed to prevail where a tort involving a breach of public duty, occurring within this State, has been clearly established and damages awarded on a principle recognized as necessary to enforce proper performance of such duties in this and all other cases of like kind.

It is also contended that if this proceeding and the principle upon which it rests are upheld, many persons could institute actions for the same breach of duty; that recoveries would be unduly multiplied and, in many instances, grave injustice done; but there would seem to be no good reason for this apprehension. . As we have endeavored to show, in the large-number of cases the amount of damages to be awarded for mental anguish is practically the same whether the action is on tort or contract. Where a tort is established the consequential damages are only those which are natural and probable under the circumstances existent or as they reasonably appeared at the time the same occurred, and, applying the principle, when recovery for mental anguish is had in tort, the damages are properly confined to the parties to the contract or to those whose interest, as beneficiaries of the message, has been sufficiently disclosed to the company. It is only as to those persons that such damages could be reasonably held either probable or natural.

It is further insisted that the regulations of the company, requiring presentation of claims of this kind within sixty days, would be annulled, but, to our minds, no such result follows. These regulations, to the extent that they are reasonable, and not in excuse for negligence, have been upheld with us by express decision, and we see no reason why they should not be allowed to prevail, whether the action is in contract or tort. Forney v. Telegraph Co., 152 N. C., 494; Sherrill v. Telegraph Co., 109 N. C., 527.

We are aware that there are decisions to the contrary in other jurisdictions, more especially in respect to the addressee of the message, but they are not in accord with thex principles established here. We were referred by counsel to the case of Cannaday v. R. R., 143 N. C., 439, as authority in contravention of our present ruling, but that was a case where the contract and all the facts relevant to plaintiff’s cause of action had their origin and existence in another State, and the case has no application to the facts appearing in this record, and, in two cases from Supreme Court United States, to which we were cited, Primrose v. Telegraph Co., 154 U. S., 444, and Western Union v. Hall, 124 U. S., 444, the actions were considered and dealt with as for breach of the contract. In the present case a tort committed in this State having been established by the verdict, we are of opinion that the damages have been awarded on correct principles, and tbe judgment in plaintiff’s favor must be therefore affirmed.

Affirmed.