84 S.E. 796 | N.C. | 1915
This action was brought to recover damages for failure to deliver a message, addressed to plaintiff at Fayetteville, N.C. by his (516) sister, Mrs. H. C. Freeman, at Lumberton, N.C. at 11:30 a. m. on 8 May, 1913, in the following words: "Mother died yesterday. Buried this afternoon." It is admitted by the defendant in its brief that there was some evidence of negligence, sufficient to carry the case to the jury. Plaintiff did not reside in Fayetteville, but 3 miles from there, in the country. The operator received the message, copied it, and delivered it to the messenger at that office, who searched for G. W. Smith and could not find him, but was told that he lived at Victory Mills, 3 miles away, whereupon he attempted to call him over the phone, but failed to reach him. He returned the message to the operator, who sent a service message to the operator at Lumberton, informing him of the facts, and asking for a guarantee of 75 cents for special delivery charges beyond the free-delivery limits. The operator at Lumberton, S. H. Hamilton, carried the service message to the sender's husband and agent, H. C. Freeman, who originally delivered the message for transmission, and asked him if he would guarantee payment of the extra charge for the special service in delivering outside of Fayetteville, which he refused to do, but directed Hamilton to request the operator at Fayetteville to mail the telegram to G. W. Smith, which was done, and the latter received the message by mail the next day, but after the funeral, which took place at 5 o'clock p. m. on the day the first message was sent. H. C. Freeman, witness for the plaintiff, admitted the conversation with Hamilton about the telegram, but afterwards stated that he did not know what was said by them, though he denied having refused to pay the charge for extra service in making a special delivery of the message beyond Fayetteville, and stated that he would have paid it if he had been asked to do so. In order to contradict him, defendant offered as evidence the following written statement made by Freeman on the day of its date: *601
"LUMBERTON, N.C. 15 May, 1913.
"This is to certify that I (H. C. Freeman), on 8 May, 1913, about 11:30 a.m., filed a telegram at the Western Union Telegraph office at Lumberton, N.C. for my wife (Mrs. H. C. Freeman), addressed to G. W. Smith, Fayetteville, N.C. reading as follows:
"`Mother died yesterday. Burial this afternoon.'
"Manager Hamilton, who wrote the message for me, asked me if I could give some address at Fayetteville, and I told him that I knew no other or better address. Mr. Hamilton notified me in person, about 1:50 p.m., that the message was undelivered; that Mr. Smith lived 3 miles in the country, and that it would cost 75 cents to have it delivered. I told Mr. Hamilton to have them mail a copy; that we did not expect him to attend the funeral anyway. (We lay no blame on the part of the telegraph company at all, as they did as instructed by us. We sent the message to Mr. G. W. Smith as a matter of respect, (517) and we did not expect him to attend the burial, as interment was made before the arrival of any of the afternoon trains. We regret very much that Mr. Smith has taken such action against the telegraph company, and if he is suing for mental anguish, we feel sure that he is going to have a very difficult job proving it.)"
Plaintiff objected to the part in parentheses, which was excluded by the court, and defendant excepted. There were other exceptions to rulings of the court and the charge, but it is not necessary to state them. The jury found for the plaintiff, and defendant appealed from the judgment upon the verdict.
If the defendant's witnesses testified truthfully in this case, the defendant performed its duty and is not liable to the plaintiff for anything. It transmitted the message promptly from Lumberton to Fayetteville, caused search to be made for the sendee at that place, and, failing to find him, used the telephone unsuccessfully for the purpose of communicating with him. It then wired back to the sender for payment or a guarantee of the charge of 75 cents for the extra service in delivering beyond the place to which the message was addressed. So far, it was within its rights, and there was full compliance with a correct performance of its duty, and the case turns, at this point, upon the question whether H. C. Freeman did or did not refuse to pay the charges. His testimony as to the conversation with *602
Hamilton was not very consistent, and it became important to the defendant that every piece of evidence fairly tending to impair his credit should be considered by the jury. The portion of his written statement, which he had before deliberately made, was excluded by the court, for what reason we are not advised. It clearly tended to contradict him in respect to this vital matter. Surely this admission, in the excluded part of the statement, had that tendency, viz., "We lay no blame on the part of the telegraph company at all, as they did as instructed by us," and we also think that the whole letter should have gone to the jury. 1 Elliott on Evidence, sec. 241; Spencer v. Fortescue,
It was the duty of the defendant, when it learned that the sendee lived "out of town," to inform the sender of the fact and demand payment, or a satisfactory guarantee, of the charge for the extra service, as it elected. The Chief Justice said, in Bryan v. Tel. Co.,
The case of Tel. Co. v. Taylor, supra, which has been generally (519) followed by the courts, and which has been approved by this Court, held that where the rules of the company restrict its free-delivery limits to the radius of a given distance, in that case one-half mile of its office, it is not legally bound (the special delivery charge not having been paid or arranged) to deliver a message to the addressee at his residence in the country, 3 miles from the said office. The rule as to delivery limits is a reasonable one, and we have held that it must be complied with, when brought to the attention of the sender, by the prepayment of or some agreement in regard to the special delivery charges.
Some courts have held, in well considered opinions, notably Tel. Co. v.Henderson, supra, that the sender, if the blank on which he writes his message informs him that there are free-delivery limits, must take notice of the fact, and is presumed to have sent the message with the understanding that the sendee resides within them, unless he has provided, in some way satisfactory to the company and in advance, for the payment of the extra toll for a special delivery, if the sendee lives beyond the free-delivery limits. But we have not gone so far, and deem our rule the more reasonable one, viz., that the company should notify the sender by a service message, if the message cannot be delivered within the limits prescribed for the place to which it is addressed, so that he may furnish a better address, or, if the addressee lives beyond the said limits, provide for the payment of the charge for the extra service required. Hendricks v.Tel. Co.,
But this only shows how important it was that all the facts regarding the guarantee of the charge for the extra service should have been laid before the jury, and it would appear, in this case, that the denial of the right to have this done greatly prejudiced the defendant, as the written statement squarely contradicted Freeman's testimony in every material respect, so far as it concerned this question, which was the paramount one in the case.
Mental anguish affords a proper basis for the assessment of damages in telegraph cases, irrespective of physical injury, as this Court held as far back as Young v. Tel. Co.,
For the error indicated, another trial is ordered.
New trial.
Cited: Johnson v. Tel. Co.,