#### LOU H. HOCUTT v. WESTERN UNION TELEGRAPH COMPANY.*

(Filed 25 March, 1908).

1. Telegraph Companies — Messages—Failure to Accept — Liability.

A telegraph company is liable for nominal damages at least for negligent failure or refusal of its agent to receive for transmission a telegram, properly addressed, with money to pay the necessary toll, whether such conduct on the part of the agent was a breach of contract or a tort.

2. Same — Insufficient Defenses.

When a telegram, properly addressed, Is offered to the agent of a telegraph company, with the toll for its transmission, it is no defense, upon the question of the plaintiff’s right to nominal dam- . ages for the failure to receive the message for transmission, that its agent had recently received a telegram from the addressee and erroneously supposed that the message in question was addressed to the wrong destination, and therefore tetumed the telegram, with the money, to the sender, with a note to that effect.

3. Telegraph Companies — Rights of Public, Invasion of — Measure of Damages.

Nominal damages are awarded against a telegraph company for the violation or invasion of some legal right of its patron, and to determine such right, and when substantial damages are shown, the injured party can recover, on account of the wrongful act, compensation commensurate with the injury thereby sustained.

*1874. Telegraph Companies — Negligence — Ordinary Care — Repeating Message — Substantial Damages — Avoidance of Injury — Questions for Jury.

When the operator of defendant, erroneously supposing that a telegram had not been addressed to the correct destination, returned it to the sender, with the money sent to pay its toll, and afterwards asked the sender to send him the message again, so that he might transmit it as written, which she refused to do, and requested another person, as her agent, to have the message sent, it is for the jury to find whether the sender therein exercised ordinary care, after knowledge of the negligence of defendant’s operator, in not repeating the message, when requested by him to do so, or whether her agent exercised due care, and, if not, whether, except for such negligence on her part or on the part of her agent, the addressee would have received the telegram in time to have avoided the infliction of substantial damages.

5. Telegraph Company — Avoidance of Injury — Duty of Sender.

In order to recover of the defendant telegraph company substantial damages for its failure to transmit a telegram, it must appear in proper instances that the plaintiff, after she had knowledge of the defendant’s negligence, exercised ordinary care to prevent the probable damage, if the telegram was finally delivered to the company too late to prevent such damage.

ActioN tried before 0. II. Allen, J., and a jury, at December Term, 1907, of EeauKORt.

This action was brought to recover damages for negligently failing to transmit and deliver a telegram addressed by the plaintiff to her husband at Greensboro, N. 0. The message was dated 20 June, 1905, and was as follows: “Eaby very sick. Come at once.” She also, at the same time, wrote him a letter, to which he replied on the 21st in a telegram: “Letter received. ITow is the baby this morning? Could you bring him away to-morrow ? I could meet you at Selma.” She then attempted to send to her husband, at Greensboro, the telegram in question, which was as follows: “Cannot leave. Doctor says baby no better. Come home immediately.” The telegrams to ITocutt were sent “deadhead” — that is, without any charge by the defendant — as he had been its operator at Washington, N. C.

*188Tbe testimony tended to show that the last telegram was delivered by a colored' woman for Mrs. Hoeutt to the operator of defendant at its office in Washington, N. 0., with the money to pay the cost of sending it, and a note from Mrs. Ilocutt. The operator, thinking that Mr. Hoeutt was at Wilson, N. 0., and not at Greensboro, which turned out to be a mistake, returned the telegram and money to Mrs. Ilocutt, with a message that Mr. Ilocutt was in Wilson (presumably on the way to his home at Beaufort), and it would not be necessary to send the telegram. It was then about 12 o’clock. When the colored woman returned with the message Mrs. Ilocutt went to a neighbor’s house and inquired by telephone of the operator why he had not sent the telegram. In consequence of her conversation with him she then went to the Atlantic Coast Line Railway station and gave the telegram to D. 0. Ross, about 12:30 o’clock, to be delivered to the operator of the defendant and sent to Greensboro. There was some delay by Ross in delivering the telegram, by reason of which it was not received by the plaintiff’s husband until too late to take the train which left Greensboro at 1:57 o’clock P. M. on that day, •and he consequently did not reach his home until the next evening at 7 o’clock. The operator at Washington, N. C., W. E. Clark, testified that when he discovered his mistake as to the whereabouts of Ilocutt he told Mrs. Ilocutt, in reply to her inquiry of him through tire telephone, that if she would repeat the telegram to him he would send it to her husband, and that she refused to do so, saying at the time “that she was right and would not have him send it then.” In her testimony this was not contradicted by Mrs. Ilocutt, though it was not admitted by her to be true. There was other evidence, but it is not necessary to state it, because of the view taken by the court of the case.

The issues submitted, with the answers thereto, were as follows :

“1. Was the defendant guilty of negligence in respect to *189forwarding tbe telegram from Mrs. Hoeutt to E. J. Hocutt, dated 21 June, 1905 ?” Answer: “Yes.”

“2. If so, did such, negligence prevent tbe husband of plaintiff from reaching bis home as early as be would otherwise have done?” Answer: “Yes.”

“3. If so, what damages, if any, has plaintiff sustained?” Answer: “Two thousand dollars.”

Among other instructions to the jury, not material to be mentioned, the court gave substantially the following:

1. “If the jury find from the evidence that the plaintiff had reasonable grounds to abandon her effort to send the message through the agent, Clark, on account of his negligence, and that his negligence caused her to request Ross to have the message sent for her, which resulted in delay and prevented her husband from reaching his home as soon as he otherwise would have reached it, you will answer the second issue £Yes,’ even if Ross was delayed or was negligent, provided you find that his negligence was caused by reason of Clark negligently failing to send off the message when he ought to have done so, as then the negligence of Ross, if you find that he was dilatory or negligent, would not be chargeable to the plaintiff.

“2. The plaintiff, if entitled to recover at all, would only be entitled to recover for such mental anguish and physical suffering as were directly due to the delay of her husband in reaching her, on account of the negligence of the defendant in not sending the message off to the husband, and no other.”

The defendant excepted to each of these instructions. Judgment was entered upon the verdict, and defendant appealed.

Bragaw & Harding and Ward & Grimes for plaintiff.

Small, McLean & McMuUan and F. H. Busbee & Son for defendant.

*

Brown, J., took no part in the decision of this case.

WalKER, J.,

after stating the case: "When the agent of the defendant received the message, with the money to pay the *190charges of transmission, and failed to send it, a wrong was committed to the plaintiff which gave her a cause of action and entitled her to recover at least nominal damages. It can make no difference whether it was a breach of contract or a tort. The defendant owed the plaintiff the duty to transmit the message to Mr. TIocutt at Greensboro, N. 0., and there is nothing to show that it was in any way excused for the nonperformance of this duty. The operator, it is true, thought that Mr. TIocutt was at Wilson, as he supposed a message from that place had been sent by him that day and received at the defendant’s office in Washington, N. C., but in this it turned out that he was mistaken. The telegram was from Greensboro, and when he received the message from Mrs. TIocutt addressed to her husband at Greensboro he could have referred to the other message then in his office and prevented the mistake which he committed, and the consequent delay, instead of returning the message and the money to the sender. We do not see why the operator returned the message and the money to Mrs. TIocutt. Tie could just as well have made the inquiry of her in regard to the whereabouts of her husband without doing so, and by note, as he did, and when she refused in the conversation over the telephone to give him the desired information, if she did so, his duty would have been fully discharged and the consequent damage to her prevented altogether by sending the message according to the.address on its face when he received it from her. Mrs. TIocutt was not bound to do more than she did when she caused a properly addressed message to be delivered to the defendant’s operator and tendered the proper charges for transmission. The duty then devolved upon the defendant to send and deliver the message to the addressee, unless it had some legal excuse for not doing so, and none appears in this case. Sherrill v. Telegraph Co., 116 N. C., 655; Gerock v. Telegraph Co., 142 N. C., 22; same case, ante, 1; Bartlett v. Telegraph Co., 62 Me., 221; Kennon v. Telegraph Co., 92 Ala., 399; Tele *191 graph Co. v. Aubrey, 61 Ark., 613. So far, tbe case is with the plaintiff, and the first two issues were correctly answered in law, upon the controverted facts, and if there had been no evidence of substantial damages the plaintiff would be entitled to nominal damages, under the third issue. The rule has been stated thus: “Where a person has entered into a contract with another, by which the performance of some obligation is imposed upon or assumed by him, or where by common law ok by statute some duty is imposed upon a person with reference to the rights of others, in case of a violation of such obligation or duty the aid of the courts may be invoked by a suit for damages, the object of such action being to enable the injured party, as far as is possible, to obtain compensation or satisfaction for the loss he has suffered by such violation. According as the facts of each ease may require, damages, if awarded, may be nominal, actual or exemplary. Nominal damages are a small or trivial sum awarded for a technical injury due to a violation or invasion of some legal right and as a consequence of which sbme damages must be awarded to determine the right. Thus, though no actual damage may result from a breach of the contract by a telegraph company in negligently failing to promptly deliver a message, yet nominal damages may be awarded. And as a general rule in such cases only nominal damages can be recovered, unless some substantial damage be shown, or unless the negligence of the company is the proximate cause of the damages sustained. Actual damages are those which are given as compensation to a person injured by the wrongful act of another, commensurate with the actual loss or injury sustained.” 2 Joyce Electric Law, secs. 941, 942, 943.

When the plaintiff discovered that the agent had made a mistake, and that by his negligence she was about to suffer damage, the law imposed the duty upon her to use such care and diligence as a person of ordinary prudence under the circumstances would have used to prevent the threatened dam*192age or to minimize it. Tbe rule bas been thus stated and applied to cases of delayed telegrams: “The duty rests upon all persons for whose losses others may be liable to respond to take all reasonable measures to diminish the damages that may occur. This principle applies to all who1 may claim indemnity from others for losses, either upon express contracts or for torts. So, in cases where a person has been injured.by the failure to deliver a telegraphic message or by an error in transmission thereof, and he stands in a position to suffer further loss in addition to that already incurred, he should exercise reasonable efforts to make the loss as light as possible, and there can be no recovery of damages for any loss which might have been averted by the exercise of such efforts.” 2 Joyce Electric Law, sec. 972. lie adds, in the same section, that, if the injured party has exercised reasonable care to prevent the damage which would otherwise result, the mere fact that his efforts might have been more judicious will not enable the company to escape the consequences of its negligence.

This doctrine, that a party will not be permitted to recover damages which he could have averted by the exercise of ordinary care and diligence after he discovered the wrong, has been variously stated by the text writers and the courts. In Hale on Damages, p. 64 et seq., it is said: “Compensation for a wrong is limited to such consequences as the injured party could not have avoided by reasonable diligence. All other consequences are regarded as remote.' The rule is the same in cases of contract and cases of tort. The injured party’s own negligence or willful fault in failing to take reasonable precautions to reduce the damage, after notice of defendant’s wrong, is the proximate cause of such injuries. If the party entitled to the benefit of a contract can protect himself from a loss arising from a breach at a trifling expense or with reasonable exertions, he'fails in social duty if he omits to do so, regardless of the increased amount of damages for which he may intend to hold the other contracting party liable. ‘Qui *193 non prohibet, cum prohibere possit, jubet.’ And be-wbo lias it in his power to- prevent an injury to- his neighbor and does not exercise it is often, in a moral if not a legal point of view, accountable for it. The law will not-.permit him to throw a loss resulting from a damage to himself upon another, arising from causes for which the latter may be responsible, which the party sustaining the damage might by common prudence have prevented. The party who is not chargeable with a violation of his contract should do the best he can in such cases, and for any unavoidable loss occasioned by the failure of the other he is justly entitled to a liberal and complete indemnity.” So, in Sutherland on Damages, sec. 88, it is thus expressed: “The law imposes upon a party injured by another’s breach of contract or tort the active duty of using all ordinary care and making all reasonable exertions to render the injury as light as possible. If by his negligence or willfulness he allows the damages to be unnecessarily enhanced, the increased loss, that which was avoidable by the performance of his duty, falls upon him. This is a practical obligation under a great variety of circumstances, and, as the damages which are suffered by a failure to perform it are not recoverable, it is of much importance.” This Court has recently held that a party can recover damages only to the extent they could not have been avoided or diminished by ordinary care and diligence on his part, and that for any loss incident to a failure in the use of such care or diligence no recovery can be ‘had. Bowen v. King, 146 N. C., 385; Railroad v. Hardware Co., 143 N. C., 58. See, also, Baldwin v. Telegraph Co., 45 N. Y., 753; Pepper v. Telegraph Co., 87 Tenn., 571; Telegraph Co. v. Reid, 83 Ga., 401, In the case last cited Bleckly, C. J., says that, after the discovery of the negligence and its probable consequences, “the authorities all hold that it is the dirty of the injured party to exercise some degree of diligence in rendering the damage of a negligent act as little as practicable.”

*194Tbe question in our case is, Did tbe plaintiff exercise ordinary care to prevent tbe probable damage to berself after sbe knew that Clark bad been negligent ? and not whether tbe negligence of her agent, Ross, if be was her agent, was induced by tbe prior negligence of Clark. If a person of ordinary prudence would have repeated the message to Clark over tbe telephone when be requested it to be done, if it be found as a fact by tbe jury that be did make tbe request, and Mrs. Iiocutt failed to do so and was negligent in this respect, or if sbe constituted Ross her agent to deliver tbe message to Clark for tbe purpose of being transmitted by him to her husband, and Ross was negligent, and tbe jury find that either act of negligence was tbe proximate cause of tbe damage, or that, if neither sbe nor her agent bad been negligent, her husband would have received tbe telegram in time to have taken tbe train which left Greensboro at 1:57 P. M. and would have arrived at Washington as soon as be would have reached that place if tbe first message bad been sent by Clark when received by him for transmission, then tbe damages would be only nominal. But, if there was no such intervening act of negligence, and Clark’s negligence, therefore, was the proximate cause of tbe damage, tbe plaintiff is entitled to recover whatever' actual or substantial damages sbe suffered. If we should bold that tbe prior negligence of Clark could have tbe legal effect of excusing tbe subsequent negligence of Mrs. Iiocutt or her agent, we would then ignore tbe rule as to tbe duty of tbe injured party, when informed of tbe negligence which caused tbe injury, to exercise care in avoiding its consequences, if, indeed, it would not nullify tbe rule, for the latter presupposes tbe existence of prior negligence. We think, therefore, that tbe first of tbe instructions set out in our statement of tbe case, notwithstanding the second instruction given by tbe court, was calculated to mislead tbe jury upon tbe question of damages, and for this reason a new trial is awarded, but it will be restricted to tbe third issue, as to damages.

New Trial.