Hunter v. Telegraph Co.

Walker, J.,

concurring. The doctrine of mental anguish which has been recognized and applied in this Court for many years, either has no scientific or rational basis upon which to rest so as to justify a recovery by father, brother, husband, or any other person bound to another by a close tie of blood or marriage, of damages from a telegraph company *469for tbe negligent failure to deliver a message, or the rulings and judgment in this ease must be free from error. We cannot deny to the plaintiff the right to recover any damages which he may have sustained, unless we completely repudiate the doctrine, reverse our former decisions and deny to everybody the right to recover damages for mental anguish caused by the negligence of a telegraph company in delivering messages. When we once admit the correctness of the principle upon which such recoveries have been based (and this has been done at the present term in Cogdell v. Telegraph Co., and Hood v. Telegraph Co., and at the February Term, 1902, in Meadows v. Telegraph Co., 132 N. C., 40, and Bright v. Telegraph Co., 132 N. C., 317, by a unanimous court), we must carry this admittedly correct principle to its legitimate and logical conclusion and to its necessary consequence, and permit a recovery by any one, without regard to the closeness of relationship, who can show the negligence and that mental anguish proximately resulted therefrom.

The doctrine, as stated in the former decisions of this Court, could not have been restricted to close relationship, but in its very nature extended to those which are remote, as it was founded upon a breach of public duty by the telegraph company, which duty required that messages should be transmitted and delivered with reasonable care and dispatch and with due regard for the rights of the patrons of the company. The public is vitally interested in the performance of this duty and, whenever there is a breach of it, the right to recover damages flowing from the breach depends upon the ability of the party who alleges that he has been injured by the failure of duty to prove his actual- damages, which include damages for mental anguish, and may consist solely of such damages. Cashion v. Telegraph Co., 123 N. C., 267. It is a question of proof, and not one of close relationship, which determines the right to recover damages for the injury. *470We can imagine a case where there is no relationship, and yet where the parties are quite as closely united and bound to each other by ties of affection as if a close relationship existed. The closeness of the relationship does not of itself necessarily prove that there has been mental anguish where there has been a negligent failure to deliver a message. It is a circumstance to be considered by the jury in- determining whether or not there has been any mental suffering, and this Court has said that the relationship of the parties may be so close as to raise a presumption of mental anguish and consequent damage. The doctrine, as established by the former decisions of this Court, is that mental anguish may be the basis for the recovery of damages without regard to the particular relationship of the parties. The relationship was referred to merely as being evidence of mental anguish, which is strong or weak, according to the degree of relationship. It was never intended to assert that a person who is not closely related by blood or marriage to the person whose sickness or death is announced in the message cannot recover if mental anguish actually resulted from the default of the defendant. Take the case of a person who is but slightly related to the person whose sickness or death is announced in the message, but who stands towards him in loco parentis. Should he be denied the right to recover when a son, between whom and his father there has been long estrangement and bitterly hostile feelings, is permitted to recover for failure to deliver a message announcing his father’s sickness or death, merely because he and his father are closely related by blood 1 I go back to my first proposition: The doctrine is either fundamentally wrong, of if it is right the idea that it is confined to close relations must be abandoned, as, in my judgment (and I say so with the utmost respect for the opinion of others), it has nothing to sustain it. If the doctrine established by our former decisions is wrong, it should be promptly *471reversed, and tbe cases in which it was established should be overruled; but if it is right, it should be enforced by a reasonable and, above all things, a logical application of the principle on which it rests to the facts of each case as presented. I can see no middle ground upon which we can safely stand. We are either right in this particular case or we are wrong altogether. If the doctrine is limited in its operation, as suggested, I cannot give my assent to it at all, for there must be something radically wrong in a principle which cannot be safely carried to its logical results, so as to reach all cases coming fairly within its scope. If the reason upon which the doctrine is founded applies to one case, it must apply to all, leaving the degree of kinship to affect only the amount of the damages. The insuperable difficulty which it is admitted will be encountered in drawing the line at which the doctrine must cease to have any application, is a cogent reason for the assertion that there is no limit to the doctrine if it was a sound one in its origin. It is replied that the line at which there ceases to be a presumption of mental anguish cannot be drawn with any accuracy. This may be a reason, not for questioning the correctness of the doctrine, nor for limiting it in its operation, but merely for denying that there is any such presumption. It may be that it would be more correct to say that relationship is a fact or circumstance to be considered by the jury as evidence of mentaL anguish, which will be stronger or weaker in its probative force in proportion to the degree of relationship, whether near or remote. My conclusion is that if we are to continue to recognize and enforce the right to recover for mental anguish, the principle which ■ underlies and supports that right cannot be confined to any merely arbitrary limit, but must be applied to any case in which a negligent failure to deliver a message may cause mental suffering.

If the principle has no proper place within the borders of *472our jurisprudence, we should drive it out at once as an unwelcome intruder, and not expel it by gradually limiting its sphere of operation or by a slow process of elimination. I repeat: The doctrine of mental anguish, as it is called, is either radically wrong, or it applies to the facts of this case.