86 S.E. 290 | N.C. | 1915
(510) Action to recover damages for mental anguish, caused, as the plaintiff alleges, by the negligence of the defendant for failure to receive and deliver a telegram.
The plaintiff introduced evidence tending to prove that the telegram was delivered to the Onslow Telephone Company at Richlands and was then transmitted to the defendant at Jacksonville. Evidence was introduced tending to prove that the telegram was never received at Jacksonville. There was also evidence tending to prove that there was some difficulty in hearing over the telephone, but the operator at Richlands testified that she communicated the message to the agent of the defendant at Jacksonville and that he told her he understood it and had received it. This was denied by the defendant.
His Honor charged the jury, among other things, as follows: "If, however, the telephone operator at Richlands undertook to deliver the message to the defendant's agent at Jacksonville, and he informed her that he couldn't hear it, and she then did not communicate the message, when another person came to the `phone, and by that means the message was not delivered and received at Jacksonville, then I charge you that it would be your duty to find that the message was not received by the defendant company, and you would answer the first issue `No.'" The plaintiff excepted.
And again, "The defendant contends it was not; that the phone was so difficult to hear through that he could not take the message, and that he notified the operator at Richlands of that fact, and if you should find from the evidence that when she began the conversation *587 over the phone, delivering the messages, that she was notified that she could not be understood, to wait and he would get another party, and that she neglected to repeat the message which she was endeavoring to communicate, and only repeated three messages, then it would be your duty to answer the first issue `No.'" The plaintiff excepted.
The jury returned the following verdict:
1. Did the defendant receive for transmission and delivery the telegram set out in the complaint? Answer: "No."
Judgment was entered in favor of the defendant, and the plaintiff appealed. The liability of the defendant depends, under his Honor's charge, upon the single question as to whether the agent of the defendant at Jacksonville understood the message which the operator of the telephone company attempted to transmit, and this is free from objection, unless there is evidence that the agent of the telephone company was also the agent of the defendant telegraph company.
If there is evidence of this fact the charge is erroneous, because (511) it prevented the jury from considering an aspect of the case favorable to the plaintiff, and which might have been determinative of the first issue in his favor.
In other words, if the agent of the telephone company was also the agent of the telegraph company, the message was delivered to the telegraph company when it was received by the agent of the telephone company, and, in our opinion, there is evidence in the record tending to sustain this position of the plaintiff.
Miss Murrill, agent of the telephone company, testified: "We did receive messages for them and made out tickets against the Western Union. We collected for the Western Union and remitted at the end of the month. I phoned those messages to the operator at Jacksonville. He advised me that the cost was $1. I was working at that time in the office of the telephone company. People came there and asked me to phone messages to the telegraph people. The telegraph people would tell us to collect the charges for them. That is all we did. The telegraph office had no other agent at Richlands. The operator at Jacksonville told me to collect the charges for all the telegrams. I had received messages before this for the Western Union. I stayed there a year after this and received a great many others for them. I collected the money for them and remitted it to the Western Union." *588
If this evidence is believed it goes far towards establishing the fact that the operator at Richlands was also the agent of the telegraph company, and indeed comes within the language of section 440, subsection 1 of the Revisal, defining a local agent upon whom service of process may be made as "any person receiving or collecting money within this State for or in behalf of any corporation of this or any other State or government."
The defendant says, however, that the plaintiff cannot avail himself of this evidence because of the allegation in the complaint that the telegram was delivered at Jacksonville.
This might have been a valid objection under the old forms of pleading, although it is said to be "common learning that allegations of time and place are not in general material or traversable" (Pegram v. Stoltz,
Of course, if an allegation of time and place is made and a party has prepared his evidence based wholly upon the allegation, and is (512) surprised at the trial by the offer of evidence of another time or place, the judge will and ought to give the opportunity to meet the evidence of the adverse party.
For the error pointed out a new trial is ordered.
New trial.
Cited: Whichard v. Lipe,