Opinion
(Filed 5 May, 1909.)
1. Telegraphs — Negligence — Office Hours — Efforts to Deliver — Defenses.
The observance of reasonable office hours is not a valid defense to the delayed delivery of a message by a telegraph company, when it is shown that it was received on Saturday night as a night message, delivered on Monday morning between 9 and 10 o'clock, and under the rules of the company it appeared that it should have been delivered on Sunday morning to the addressee, who resided within a short distance of the telegraph office, and no effort was made to do so.
2. Telegraphs — Messages — Negligence — Failure to Deliver — No Train — Evidence — Questions for Jury — Instructions.
When it appears that the delivery of a telegram announcing an extreme illness had been negligently delayed by the defendant telegraph company from 8 A. M. Sunday morning until between 9 and 10 A. M. Monday morning, that no train ran from that place on Sunday which plaintiff could have taken, and the defense was that defendant's negligence was not the proximate cause of the injury, for that the plaintiff could not have reached his destination before the funeral had the message been promptly delivered, testimony of plaintiff tending to show he could have driven a great distance through the country and have taken a train at another station in time was sufficient evidence to be submitted to the jury, under an instruction that such fact must be shown by the plaintiff to the satisfaction of the jury.
3. Telegraphs — Messages — Notice of Importance — Relationship — Mental Anguish — Evidence Sufficient.
A telegram announcing the dying condition of a child, with request to "come," puts the company upon notice of its importance to the sendee and that it was sent for his benefit, and when the testimony shows that the child was a niece, to whom sendee was much attached, and had lived with her in his brother's house, it is sufficient evidence for the jury to consider in awarding damages for mental anguish.
(560) ACTION tried before Ward, J., and a jury, at August Term, 1908, of CALDWELL.
W. C. Newland, Thomas Newland and Lawrence Wakefield for plaintiff.
Avery Avery and George H. Fearons for defendant.
Action for damages, arising from delay in delivering a telegram to plaintiff, as follows:
"STATESVILLE, N.C. 13 October, 1916.
"R. H. PIERSON, Lenoir, N.C.
"Come to Statesville at once. Hamp's child dying. J. H. HOLDEN."
These issues were submitted:
1. "Was the defendant guilty of negligence in respect to the transmission and delivery of the telegram to the plaintiff, R. H. Pierson?" Answer: "Yes."
2. "If so, was the plaintiff, R. H. Pierson, injured thereby?" Answer: "Yes."
3. "What damages, if any, has the plaintiff sustained?" Answer: "Three hundred dollars."
From the judgment rendered defendant appealed.
The message was filed with defendant company as a night message, for transmission on Saturday, 13 October, 1906, at 8 P. M. It was delivered to the plaintiff on Monday morning, between 9 and 10 o'clock. That this is gross negligence is not open to discussion. Assuming that it was filed and accepted as a night message, (561) under the rules of the company, it should have been delivered next morning about 8 o'clock, according to the testimony of defendant's operator. It was not received at Lenoir until 9:42 A. M. Sunday, and when received at Lenoir it was addressed to the care of Jim Betler instead of Jim Booth, but there is no evidence that plaintiff is chargeable with that error. There is no evidence of any effort being made Sunday morning to find plaintiff or Jim Betler in Lenoir, although the former resided within two hundred yards of the telegraph office. We think his Honor did not err in directing the jury that if they believed the evidence to answer first issue "Yes."
The real defense of the defendant is based upon the theory that if the telegram had been delivered on Sunday morning, according to contract, the plaintiff could not have reached Statesville in time to attend the funeral, and that therefore the plaintiff has failed to show that defendant's negligence was the proximate cause of the injury. It is plain that there was no train leaving Lenoir on Sunday morning which he could have taken, as the only Sunday train left at 5 A. M.; but plaintiff testified that he would have gone to Statesville Sunday morning had he received the message, and that he could have gotten there for the funeral by driving to Hickory. The possibility of such an achievement was contested by defendant, but we think his Honor properly submitted the question to the jury when he told them "that the plaintiff must show to your satisfaction that he could have gone to Statesville before the funeral." Upon this contention his Honor fairly submitted to the consideration of the jury the evidence and facts relied on by defendant as well as plaintiff.
It is further contended that there is no evidence that the plaintiff suffered any mental anguish.
The character of the message put defendant upon notice of its importance to the sendee and that it was sent for his benefit. The testimony shows that the dying child was plaintiff's niece, with whom he had lived in his brother's house, and that he was much attached to her. It is true that plaintiff does not use as strong language in (562) endeavoring to portray his grief as is sometimes employed, but facts sometimes speak louder than words, and both together made out a case sufficiently strong to be submitted to the jury.
No error.
Cited: Cotton Mills v. R. R., post, 611.