BROWN, J., dissenting.
This action is brought to recover damages for negligent delay in delivering a telegram sent from Scotland Neck 14 December, 1914, announcing the death of Mr. Noah Biggs, and stating that the funeral would take place the next day at 3 p. m.
The complaint alleges that if the telegram had been delivered to the plaintiff that night he could have left Kinston next morning at 7:10 a. m. and would have reached Scotland Neck in time for the funeral. The uncontradicted evidence shows that a list of some sixty names, to whom telegrams of the same nature were sent, were filed in the office at Scotland Neck between 7:30 and 8 p. m., and that two of these messages were delivered that night to other parties in Kinston. It was further in evidence, however, that two other messages, among them that to the plaintiff, were not among these sixty which were first filed, but that these two belated messages were filed in the office at Scotland Neck "about 9 o'clock." It was shown that the hours of the defendant's office in Kinston were from 8 o'clock a. m. to 9 p. m., and that the Kinston office had been closed before his message could be received from Scotland Neck. There is no direct wire between the two points, messages being relayed at Norfolk. There is no evidence that this was unreasonable.
The court instructed the jury: "If you believe all the evidence in this case you will find that the agent at Scotland Neck was not instructed by the sender of this telegram to the plaintiff Lawrence until about 9 o'clock, and that at that time the office of the defendant at Kinston was closed. . . . So, gentlemen of the jury, the only question left for you to consider on this first issue is, whether there was negligence on the part of the company in delivering this message to the plaintiff Lawrence after it was received in Kinston on Tuesday morning." If there was error in this, the defendant cannot complain, and the plaintiff is not appealing.
Upon this issue the evidence of the plaintiff himself was that the train had left for Scotland Neck at 7:10 a. m.: that it was 90 miles (242) over dirt road, and that he could not have reached there by automobile in less than six hours in the condition the roads were at that time, in December, and that after he received the message, which was at 10 a. m., he "tried to find an automobile." "There was but one automobile that I knew of that would go under the circumstances, and he was out of town. He came back to town at 11 o'clock a. m. . . ."
He says further: "I could have reached Scotland Neck by automobile by 3 o'clock if the telegram had been delivered at 9 o'clock. The driver told me so."
It was in evidence by the operator at Scotland Neck that the message was received there at 8:52 p. m. (their usual closing hour being 8 p. m.), and that his office received reply from Norfolk, to which it was sent in regular course to be relayed to Kinston, that the message to Lawrence could not be delivered, as the Kinston office had closed, and it would have to lie over till the next morning. The telegram was in evidence, and on its face bore a notation that it was received at Kinston at 8:29 a. m. There is still left open the allegation of negligence in that the message having been sent to Norfolk the night before, and its urgency being shown on its face, that it should have been delivered to the office in Kinston, immediately after 8 o'clock or at any rate earlier than 8:29 a. m. There is still left open the allegation of negligence in that the message and further, that even if received at 8:29, with proper diligence, in a town of the size of Kinston, the telegram, which on its face showed that it had been received at Scotland Neck the night before, should have been delivered before 9 a. m. The plaintiff testified that if he had received it by that time he could have reached Scotland Neck before 3 p. m. by automobile.
Whether this delay was negligence or not, under all the attendant circumstances, was purely an issue of fact for determination by the jury, and is not an issue of law which this Court can review. The jury have found upon evidence sufficient to be submitted to them that there was negligence in this respect, and the motion for a nonsuit was properly denied.
It was in evidence that the plaintiff had lived in Kinston sixteen years; that he had an established place of business on a public street in the town of Kinston where he had been a resident for more than sixteen years, and was well known to the local manager of the telegraph company as a barber in a public barber shop in the town. It was not error for the judge to charge that "If the telegram was not actually delivered to the plaintiff until 10 o'clock, that is, until an hour and a half after time at which the defendant says that the telegram arrived at its office in Kinston, that this was evidence of negligence to be considered by the jury." It is true that the defendant says that it had enough messenger boys to handle its ordinary business, but that they all happened to be out at the time this message was received. This was a matter of defense for the jury to consider, whether in fact there was a (243) sufficient number of messengers or not and whether their absence justified the failure to get an additional messenger on this occasion and the delay of an hour and a half, if the plaintiff's testimony is to be believed, in the delivery of this telegram.
We need not consider the second exception, for the exclusion of the affidavit of Rev. Mr. McFarland that he delivered the message to the office in Scotland Neck "about 9 p. m.," for the judge instructed the jury that upon the evidence there was no negligence in failing to deliver the message the night.
The only other exception that we need consider is to the following part of the charge of the court: "In this case, there is nothing in the evidence which would justify the jury in presuming that there was any injury received by this plaintiff. The burden would be upon him to satisfy you that the relations between him and Mr. Biggs were such that he suffered an injury by his failure to get to Mr. Biggs' funeral. If this evidence satisfies you by its greater weight that the relations between these men were such that by reason of his inability to get to the funeral the plaintiff did suffer mental anguish of mind, then it is for you, gentlemen of the jury, to say upon all the evidence what sum would compensate him for this injury."
The defendant was put on notice by the receipt of more than sixty telegrams announcing the death of Mr. Biggs and the hour of his funeral that he had many friends who would probably which to attend and pay this last sad tribute of respect to his memory. It is true, the plaintiff was a colored man; but the testimony is that he had been Mr. Biggs' driver for eight years, and then for many years sexton of the church in Scotland Neck of which Mr. Biggs was an active and prominent member; that whenever Mr. Biggs came to Kinston he almost always came to see him. It was also in evidence that when the family of Mr. Biggs made up the list of those whom they wished notified and given an opportunity to attend the funeral, and it was found that the name of the plaintiff and the name of Mr. Archibald Johnson, editor of Charity and Children, had been omitted, these names were at once added. There was also evidence, from others than the plaintiff, that he was held in high estimation by Mr. Biggs, who often spoken of him "in very high and complimentary terms and evidently thought a great deal of him. The plaintiff is held in high estimation in Scothland Neck."
The plaintiff himself testified that he had been requested by Mr.
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BROWN, J., dissenting.
This action is brought to recover damages for negligent delay in delivering a telegram sent from Scotland Neck 14 December, 1914, announcing the death of Mr. Noah Biggs, and stating that the funeral would take place the next day at 3 p. m.
The complaint alleges that if the telegram had been delivered to the plaintiff that night he could have left Kinston next morning at 7:10 a. m. and would have reached Scotland Neck in time for the funeral. The uncontradicted evidence shows that a list of some sixty names, to whom telegrams of the same nature were sent, were filed in the office at Scotland Neck between 7:30 and 8 p. m., and that two of these messages were delivered that night to other parties in Kinston. It was further in evidence, however, that two other messages, among them that to the plaintiff, were not among these sixty which were first filed, but that these two belated messages were filed in the office at Scotland Neck "about 9 o'clock." It was shown that the hours of the defendant's office in Kinston were from 8 o'clock a. m. to 9 p. m., and that the Kinston office had been closed before his message could be received from Scotland Neck. There is no direct wire between the two points, messages being relayed at Norfolk. There is no evidence that this was unreasonable.
The court instructed the jury: "If you believe all the evidence in this case you will find that the agent at Scotland Neck was not instructed by the sender of this telegram to the plaintiff Lawrence until about 9 o'clock, and that at that time the office of the defendant at Kinston was closed. . . . So, gentlemen of the jury, the only question left for you to consider on this first issue is, whether there was negligence on the part of the company in delivering this message to the plaintiff Lawrence after it was received in Kinston on Tuesday morning." If there was error in this, the defendant cannot complain, and the plaintiff is not appealing.
Upon this issue the evidence of the plaintiff himself was that the train had left for Scotland Neck at 7:10 a. m.: that it was 90 miles (242) over dirt road, and that he could not have reached there by automobile in less than six hours in the condition the roads were at that time, in December, and that after he received the message, which was at 10 a. m., he "tried to find an automobile." "There was but one automobile that I knew of that would go under the circumstances, and he was out of town. He came back to town at 11 o'clock a. m. . . ."
He says further: "I could have reached Scotland Neck by automobile by 3 o'clock if the telegram had been delivered at 9 o'clock. The driver told me so."
It was in evidence by the operator at Scotland Neck that the message was received there at 8:52 p. m. (their usual closing hour being 8 p. m.), and that his office received reply from Norfolk, to which it was sent in regular course to be relayed to Kinston, that the message to Lawrence could not be delivered, as the Kinston office had closed, and it would have to lie over till the next morning. The telegram was in evidence, and on its face bore a notation that it was received at Kinston at 8:29 a. m. There is still left open the allegation of negligence in that the message having been sent to Norfolk the night before, and its urgency being shown on its face, that it should have been delivered to the office in Kinston, immediately after 8 o'clock or at any rate earlier than 8:29 a. m. There is still left open the allegation of negligence in that the message and further, that even if received at 8:29, with proper diligence, in a town of the size of Kinston, the telegram, which on its face showed that it had been received at Scotland Neck the night before, should have been delivered before 9 a. m. The plaintiff testified that if he had received it by that time he could have reached Scotland Neck before 3 p. m. by automobile.
Whether this delay was negligence or not, under all the attendant circumstances, was purely an issue of fact for determination by the jury, and is not an issue of law which this Court can review. The jury have found upon evidence sufficient to be submitted to them that there was negligence in this respect, and the motion for a nonsuit was properly denied.
It was in evidence that the plaintiff had lived in Kinston sixteen years; that he had an established place of business on a public street in the town of Kinston where he had been a resident for more than sixteen years, and was well known to the local manager of the telegraph company as a barber in a public barber shop in the town. It was not error for the judge to charge that "If the telegram was not actually delivered to the plaintiff until 10 o'clock, that is, until an hour and a half after time at which the defendant says that the telegram arrived at its office in Kinston, that this was evidence of negligence to be considered by the jury." It is true that the defendant says that it had enough messenger boys to handle its ordinary business, but that they all happened to be out at the time this message was received. This was a matter of defense for the jury to consider, whether in fact there was a (243) sufficient number of messengers or not and whether their absence justified the failure to get an additional messenger on this occasion and the delay of an hour and a half, if the plaintiff's testimony is to be believed, in the delivery of this telegram.
We need not consider the second exception, for the exclusion of the affidavit of Rev. Mr. McFarland that he delivered the message to the office in Scotland Neck "about 9 p. m.," for the judge instructed the jury that upon the evidence there was no negligence in failing to deliver the message the night.
The only other exception that we need consider is to the following part of the charge of the court: "In this case, there is nothing in the evidence which would justify the jury in presuming that there was any injury received by this plaintiff. The burden would be upon him to satisfy you that the relations between him and Mr. Biggs were such that he suffered an injury by his failure to get to Mr. Biggs' funeral. If this evidence satisfies you by its greater weight that the relations between these men were such that by reason of his inability to get to the funeral the plaintiff did suffer mental anguish of mind, then it is for you, gentlemen of the jury, to say upon all the evidence what sum would compensate him for this injury."
The defendant was put on notice by the receipt of more than sixty telegrams announcing the death of Mr. Biggs and the hour of his funeral that he had many friends who would probably which to attend and pay this last sad tribute of respect to his memory. It is true, the plaintiff was a colored man; but the testimony is that he had been Mr. Biggs' driver for eight years, and then for many years sexton of the church in Scotland Neck of which Mr. Biggs was an active and prominent member; that whenever Mr. Biggs came to Kinston he almost always came to see him. It was also in evidence that when the family of Mr. Biggs made up the list of those whom they wished notified and given an opportunity to attend the funeral, and it was found that the name of the plaintiff and the name of Mr. Archibald Johnson, editor of Charity and Children, had been omitted, these names were at once added. There was also evidence, from others than the plaintiff, that he was held in high estimation by Mr. Biggs, who often spoken of him "in very high and complimentary terms and evidently thought a great deal of him. The plaintiff is held in high estimation in Scothland Neck."
The plaintiff himself testified that he had been requested by Mr. Biggs to act as pall-bearer, and that he was much grieved that he was unable to do so, because Mr. Biggs had expressed that wish, and "I wanted to fulfill his request. He had a friend to me and I had learned to love him; he had been one of my best white friends, and had (244) always been. I have never gotten over it. It was always grievous to my very mind and soul because I did not get there, and there is never a day passing but it has been on my mind."
It is true that the deceased was a white man and that the plaintiff is a colored man; but according to the uncontradicted evidence the plaintiff
was held in high estimation by the public; he was a warm personal friend and evidently an admirer of Mr. Biggs, and had been told by him that he desired him to act as pall-bearer at his funeral. It was also in evidence that when in the list of more than sixty names to whom similar telegrams had been sent it was discovered that the name of the plaintiff and of Mr. Arch. Johnson, editor of Charity and Children, had been omitted, the family had messages for those two phoned down to the operator at Scotland Neck. It is by no means impossible, indeed, it is a matter of common knowledge, that the most kindly and cordial relations frequently exist between men of the two races who have received mutual assistance from each other or been engaged in the same calling, as here the driver of Mr. Biggs and the sexton of the church in which he was a leading member. There is no rule of law that the jury must disbelieve the statement of the plaintiff that he was much grieved at not being able at attend Mr. Biggs' funeral, and that the disappointment was a great one to him of losing the satisfaction and the honor of being a pall-bearer at the funeral of his former employer, whom he highly honored and loved. It is to the credit of human nature that such kindly relations can exist and often do exist between men of the two races, and a jury of Lenoir County, composed entirely of white men, have found as a fact that those relations did exist between the plaintiff and Mr. Biggs and that it was a grievous disappointment to the plaintiff that he should not have been able to comply with his own wish, in fulfillment of Mr. Biggs' request, to be a pall-bearer at his funeral.
When there is negligence in the delivery of a telegram concerning a pecuniary transaction, it is comparatively easy, ordinarily, to calculate the damage sustained. But there is no less a wrong calling for compensation in the delay or nondelivery of a message of this kind. It is true that there is no blood relationship between the plaintiff and the deceased. The only relation is the that of mutual esteem. Nearness in blood is only material when the presumption of anguish is relied on. When there is close blood relationship of such presumption arises without additional proof. Where there is not close relationship of blood, or no relation of that kind, then mental anguish must be shown and that the negligence of the defendant was the proximate cause thereof. Hunter v. Tel. Co., 135 N.C. 458, especially the concurring opinion of Walker, J., at pp. 468-472.
In Harrison v. Tel. Co., 143 N.C. 150, the Court sustained a claim of damage from mental anguish for delay in the delivery of a telegram which if promptly delivered would have enabled the (245) plaintiff to attend the funeral of a stepson. Brown, J., said: "There is no presumption of mental anguish growing out of the relation of stepmother and son; but under our decisions it is a fact the plaintiff
may prove, if she can, to the satisfaction of the jury, for the state of the mind is as much susceptible to proof as the condition of the stomach."
In Bright v. Tel. Co., 132 N.C. 322, this Court said: "The law does not regard so much the technical relation between the parties or the legal status in respect of each other as it does the actual relation that does exist 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 upon the failure to deliver a message when there is only affinity between the parties, it may be shown and damages recovered." This case is cited as authority in Harrison v. Tel.Co., 136 N.C. 381, which also cities Cashion v. Tel. Co., 123 N.C. 267, which said: "We do not mean to say that damages for mental anguish may not be recovered for the absence of a mere friend, if it actually result; but it is not presumed." To the same purport are all our authorities.
No error.