Sherrill v. Western Union Telegraph Co.

117 N.C. 352

Opinion

Avery, J.:

By a series of decisions it has become settled law in this State that the sender of a telegram may recover, where the company is shown to be negligent, damages for such mental anguish as may be caused either by the failure to deliver or delay in the delivery of the message sent. Young v. Telegraph Co., 107 N. C., 370; Thompson v. Telegraph Co., Ibid., 449; Sherrill v. Telegraph Co., 116 N. C., 655. It was held on the last appeal (116 N. C., 655) that proof of the receipt of a message by the agent of the company with the understanding that it would be sent to iis destination together with evidence of the failure to deliver, constitutes a prima faeie case in the trial of an action brought by the sender against the corporation to recover for its negligence. When therefore these facts were satisfactoi-ily proved, nothing more appearing, the plaintiff was entitled to an affirmative response to the first issue and to compensatory damages for mental anguish suffered in consequence of the delay, as distinguished from that which was due to the distressing nature of the message and which would have been experienced had there been no failure to deliver it. The opinion of the Court on the last hearing puts another question behind us.

TJpon tbe defendant’s own showing, its agent at States-ville (whose negligence we have heretofore held was that of the company) violated its rules when he omitted, after spending a day in fruitless inquiry, to wire back for a better address and when he neglected to notify the sender before that time of the failure to find Prank Sherrill. The agent at Statesville testified on the last trial that he did not wire back because he had all of the information that the agent could give him, but on cross examination stated that it was because he presumed that the agent at Lebanon had given him all the information he could. We do not think he was warranted in this assumption. Having failed to furnish any sufficient reason for not complying with the rule, the matter stands as it did before. His admitted and unexplained omission of duty subjected the company to liability unless it was shown that plaintiff’s agent was negligent and that her negligence was the proximate cause of his failure to receive the message more promptly. The court was warranted, therefore, in recapitulating the testimony of defendant’s witnesses, as was done in the first paragraph of the charge, and telling the jury that admitting it all to be true the defendant was negligent. The agent at Davidson was also in fault when after seeing the nature of the message he sent it by a person not employed as a messenger, to a citizen of that town who lived but a few hundred yards from him, had no receipt taken for it, and made no inquiry to ascertain whether he was the pei--son addressed, especially when W. E. Sherrill was known by him to have a wife and seven children at his home there. The failure to elicit a reply to so urgent a message, which lipón its face seemed to demand prompt answer, ought to have stimulated a further investigation on his part. It was clearly an omission of duty to seek no explanation of what seemed unnatural conduct, if the message had been delivered to the proper person. Had Schofield ascertained, as by proper diligence he might have learned, that the message had been delivered to the wrong person and so notified the agent at Statesville, it was not too late then to save the plaintiff much unnecessary anguish. We- think it was not error, therefore, to give the instruction submitted for plaintiff and numbered five and six. The proper construction to be placed upon number 7 of the same prayer, which was likewise given, seems to us to render it unobjectionable upon any tenable ground. Even though it be conceded that the plaintiff’s agent at Lebanon did not exercise due care in making special arrangements for the delivery of an answer, precaution was nevertheless taken to leave in the hands of the agent there a sufficient sum to pay for the delivery at Max (Indiana), where the sender of the telegram was known by him to- reside, of any notice that might be received by him. It appeared also that there were daily mails from Lebanon to Max and a postoffice at Max. So that, if Schofield had done his duty, or if Jones, the operator at Statesville had upon receipt of the message made more diligent inquiry or instructed the boy entrusted with the message with the important information that the person addressed had been represented as living 7 or 8 miles from Statesville, the result must have been different. Ramsay would not have told the messenger that a person represented by the sender as living within the distance mentioned, resided then at Davidson. He would have assumed doubtless on such information that the sender must know of the truth of a statement which constituted a part of the description of the person sent with the telegraph address at Statesville. Due diligence on the part of either would have led to the return of a notice of non-delivery to the sender and would have elicited a more specific description of locality, since it appears that the plaintiff was at the home of the sender, the location of which she could and would have designated unmistakably when it became apparently necessary to do so. If the exercise of ordinary care by either would have led to such further explanation as would have enabled Jones to deliver the message to plaintiff, he might have been spared the mental anguish for which he seeks to recover compensation. If, notwithstanding the want of care on the part of the plaintiff’s sister and Booher who acted as her agent in sending the telegram, either Jones or Schofield had exercised due diligence, the suffering complained of would not have ensued.' The Judge applied the law correctly to the testimony when he told the jury that the negligent conduct of the agent at Statesville, if the jury found that he had not done his duty, would dispense with the necessity for considering the question of contributory negligence. Pickett v. Railroad, decided at this term; Deans v. Railroad, 107 N.C., 686. In reply to a direct question, M. C. Sherrill who was the sender of the telegram, the sister of the plaintiff and resided with him before and after his visit to North Carolina, was allowed to depose (the defendant objecting) that plaintiff’s mental anguish was vei’y severe. The exception is insisted on upon the ground that the question whether a person was suffering mentally, when of sound mind, was one upon which no person but an expert was competent to express an opinion. "When the subject matter of the inquiry partakes of the nature of science, art or trade, persons possessing peculiar knowledge, skill or experience derived from previous practice, study or training, are allowed to give an opinion if such opinion is calculated to assist inexperienced persons in arriving at a proper solution of the question. When, however, the inquiry is of such a nature that a person of sound judgment might be reasonably expected to arrive at a conclusion as correct and just without ‘ as with the advantage of such study and experience, a witness is not allowed to give an opinion as an expert, and his opinion is held inadmissible because it gives no new light to the jury who are presumed to be capable of bringing to their aid a fair share of intelligence, common sense and reason in drawing such inferences from the testimony as will lead them to a just conclusion as to the facts. State v. Boyle, 104 N. C., 800; Rogers on Expert Testimony, Sections 6 and 7; Lawson on Expert Testimony,'Rule 28. While the general rule is that witnesses are competent to testify only as to facts and not to give opinions, there are exceptions besides the caseo'f those who qualify themselves to speak as experts. Impressions may be made upon the mind of a witness by observation only, as to hand-writing, the identity of tracks or of persons, or in reference 'to the temper or general mental or bodily state, which cannot be reproduced for verification before the jury by descriptive words or pictures of what was actually seen. It is impossible to communicate the- information thus derived from the senses, and which influences the minds of all reasonable beings in any other way than by stating the opinion based upon it. An opinion founded upon such actual observation, said GastoN, J., in Clary v. Clary, 2 Iredell, 78. “approehes to knowledge, and is knowledge, as far as the imperfection of human nature will permit knowledge of these things to be acquired, and the result thus acquired should be communicated to the jury.” But the rule is different as to the qualification of a witness to speak of temper or mental state from that applicable in the case of experts. It is the exclusive province of the court to pass upon the preliminary question whether the proposed expert has the peculiar fitness claimed for him to testify as to the.subjects within the domain of art, science or skill. But where a witness states under oath that he has had opportunity by association to judge of the mental 'condition of a person, or, by seeing one write, of bis bandwriting, or, (under our statute ) by living in a foreign country, to understand its laws, be is competent to give his opinion if be claim that he has formed one, and the trial Judge is not authorized, under the ruling's of this Court, to exclude the testimony on the ground that the opportunities of the witness have been insufficient to enable him to reach a satisfactory conclusion. Clary v. Clary, supra; State v. Behrman, 114 N. C., 797. The testimony that he has had opportunity to form, and has formed the opinion, establishes ipso facto his competency to state it to the jury. If farther examination discloses the fact that his opportunities to judge of the question have been limited, that he is wanting in intelligence, or has based his opinion of sanity upon insufficient grounds, it is the province of the jury to determine what weight, in^the light of all that is developed, is to be attached to his opinion. It is a well established rule of evidence that only experts are competent to express opinions as to the existence or nature of the disease from which a person is suffering or to give a diagnosis of his bodily condition. Lush v. McDaniel, 13 Iredell 485., On the other hand, not only is hearsay evidence of the declarations of another as to his bodily feeling or mental condition admissible, (State v. Harris, 63 N. C., 1; State v. Hargrave, 97 N. C., 457) but the mental state or appearance of a person, or his manner, habit, conduct or bodily f-ondition, as far as they can be derived from mere observation as distinguished from medical examination, may be proved by the opinion of one who has had opportunities to form it. Lawson, supra, Rule 64; Tobin v. Shaw, 71 Am. Dec., 555. It was competent therefore to prove by M. C. Sherrill, the plaintiff’s sister, that he seemed to be melancholy or to be suffering severe mental anguish when, she was living in bis bouse and constantly associated with bim. Lawson, supra. The appearance of the countenance sometimes at least furnishes far more reliable evidence of mental agony than words, which are often used to give expression to ' what is feigned, and the impression produced can only be communicated to others as an opinion. Lawson, supra, p. 471.

In Scott v. Railroad, 96 N. C., 428, Denmark v. Railroad, 107 N. C., 185, and other cases which have followed, it has been held that the nisi prims Judge may in his discretion use two or three issues or confine the jury to one, where the plaintiff alleges, as the ground of action, negligence and the defendant sets up, as a defence, contributory negligence. It is true that the first issue was not so framed as to involve the decision both of the question whether the defendant was in fault and whether its negligence was the cause of the injury complained of. The issues as presented involved three distinct inquiries, first, whether the defendant was negligent, second, whether the plaintiff was negligent, third, not whether the defendant’s negligence would have caused the injury notwithstanding the negligence of the plaintiff, but whether the latter’s negligence was the proximate cause. When there is evidence as in this case to show a want of care on the part of a defendant, supervening after the carelessness of a plaintiff, it is usual and preferable, if a third issue is submitted, to embody in it, in substance, the inquiry whether by want of ordinai’y care the defendant lost “the last clear chance” to prevent the injury. But the circumstances as well as this issue were peculiar, and the test, where the exception arises out of the form of or the adaptation of instructions to issues, is always involved in the inquiry whether it appears that the jury were actually misled or did not have the benefit of instructions prayed for and which would have aided them in passing upon the material facts. In the case at bar, as we have already seen, if the jury found by their response to the first issue that defendant negligently failed to deliver the message to Franklin Sherrill, that negligence consisted in the omission of either Jones or Schofield, or both, to exercise due diligence in ascertaining where the plaintiff-was, and in sending notice of failure to find him to Lebanon, so as to get specific information. If that specific information would have led to the delivery of the message and prevented the mental suffering, then the negligence on the part of defendant’s agents at Max or Lebanon was not the proximate cause. So that, in the light of this evidence, the Judge was warranted in telling the jury that, if defendant’s agents were negligent in failing to notify the sender of non-delivery, and they so found, that omission of duty, and not the more remote want of care in failing to furnish a specific description of the locality in which Frank Sherrill resided, was the proximate cause of whatever mental anguish the plaintiff suffered. While, therefore, we are not disposed to commend such issues for use in future trials, the defendant has failed to show that by reason of their defective form there has been ¿■failure to explain, through the medium of instructions, the law applicable to them. For the reasons given we think there was no error and the judgment must be affirmed.

Affirmed..