Sherrill v. Western Union Telegraph Co.

This is an action to recover damages for mental anguish because of the failure to deliver promptly the following message, which was filed at Johnson City, Tenn., 3 P. M., 21 December, 1909, addressed to the plaintiff at Old Fort, N.C.: "Ma died to-day. If any of you can come, will delay funeral."

Though the plaintiff lived within sight of defendant's office and was known to its agents and to the people generally at Old Fort, this message was not delivered till 11 o'clock next morning when the plaintiff happened to go into defendant's office. The deceased was the aunt of the plaintiff; they had lived together at various times, and he testified if the message had been delivered promptly he would have gone to Marion on the 8.20 train next morning, and thence to Johnson City over the C. C. O. R. R., and would have sent a message asking that the funeral be delayed, and that it would have been delayed till (253) he could have been present; that if he had taken the first train after the message was delivered he would have had to have gone around by way of Morristown and could not have reached Johnson City till late at night, and knowing that the funeral could not then be delayed till the next day, which would have been the third day, he wired the relatives that he could not come.

The above statement of facts established negligence beyond controversy. Exceptions 1 and 2 were because the plaintiff was allowed to testify that if the message had been received by him the day it was sent he would have gone to Johnson City the next morning on the 8.20 train, and that he would have sent a message asking that the funeral be delayed, and exception 9 was to the admission of the testimony of J. G. Pulliam, the sender of the message to plaintiff, that if the plaintiff had sent such message that he would have been in time for the funeral, and that it would have been delayed on that day until his arrival. The most earnest contention of the defendant is that the 8.20 train might have been behind time and that the plaintiff might have missed connection at Marion. But the evidence of both plaintiff and Pulliam is that if the plaintiff had left on the 8.20 train, and had wired as he said he would have done, the funeral would have been delayed that day till his arrival. This testimony is uncontradicted. There is no presumption of law or of fact that the train was behind time or that plaintiff would have missed connection or that the funeral would not have been delayed till his arrival if he had. It does not appear how many trains passed over C. C. O. R. R. each day nor the length of time between the arrival of the train from Old Fort at Marion and the departure of the train at that point for Johnson City. The evidence of plaintiff and Pulliam is simply that if he had left Old Fort on the 8.20 train that day, sending the message he said he would have sent, the funeral would have been delayed till his arrival.

Exceptions 3 and 4 are because the plaintiff was allowed to testify that the delay in the message till the next day caused such a shock to his mother that he could not have left on the next day after receipt of the message. This was not submitted to the jury as an element of damages and was competent as one of the reasons why he could (254) not have left after the receipt of the message at 11 o'clock next day. It was harmless, for the evidence was that if he had left after the receipt of the message he could not have reached Johnson City till late at night and the funeral could not have been postponed then till next day.

The next four exceptions were to the admission of evidence as to the relationship and feeling existing between the plaintiff and the deceased. It has been long settled that feelings of affection are presumed in the very near relations of life, but between more distant relatives such feelings must be shown by evidence. Cashion v. Tel. Co., 123 N.C. 267;Harrison v. Tel. Co., 136 N.C. 383; Luckey v. Tel. Co., 151 N.C. 553.

Exceptions 10, 11, 12 and 13 are to the refusal of the court to tell the jury that the plaintiff was not entitled to recover damages for mental anguish. This scarcely needs consideration. The delay in the telegram was unreasonable. A letter by mail would have gone from Johnson City to Old Fort in less time. The evidence is that the plaintiff would have gone in time to have been at the funeral if the telegram had been delivered before the 8.20 train next morning; that he could have gone in time if he had left by the first train, 1.10 P. M., after the receipt of the message, and there was evidence of affection between the plaintiff and deceased, in addition to the relationship.

Exceptions 14 and 15 are to the instructions of the court that after the plaintiff received the message he should have made every reasonable effort to reach Johnson City in time for the funeral, and if by reason of the delay in delivering the message he could not after making such efforts have reached Johnson City in time for the funeral, and there was no fault on his part, he was entitled to recover damages. In this there was no error.

The sixteenth and last exception is to the instruction of the court upon the question of damages, as follows: "If you come to the issue as to damages, you should assess the damages at such a figure as would be reasonable, fair and just compensation for the injury, and on arriving at it you should apply reasonable common sense methods such as reasonable business men would apply. You should not consider the (255) grief and anguish natural to the loss of the relative. You should separate the grief at the aunt's death from the grief and anguish at not being at the funeral. It is natural to suppose that a man who loses a near relative suffers grief, and you should not consider that, but only consider the anguish and suffering he may have undergone by reason of the fact that he did not attend the funeral, if you find such failure was proximately caused by defendant's negligence." We do not see that the defendant can complain of this.

The defendant company is granted its franchise that it may serve the public by the prompt dispatch and delivery of messages whose urgency requires more speedy transmission and delivery than can be had by the ordinary course of the mail. When by the selection of inefficient agents, or inefficient supervision of them, such messages are unreasonably delayed, the telegraph company has failed in its duty and the plaintiff who has sustained damages by reason of such negligence is entitled to recover therefor. It is in the power of the defendant to avoid all such actions as this by proper attention and the faithful discharge of its duties. The telegraph company has no cause to complain of any one but itself that such actions arise. It is in its power to prevent them and it is its duty to do so.

No error.

Cited: Penn v. Telegraph Co., 159 N.C. 315; Hedrick v. Telegraph Co.,167 N.C. 238.