Judges: Bbowh, Clark, Manning, Walkeb
Filed Date: 12/20/1910
Status: Precedential
Modified Date: 11/11/2024
On 16 October, 1908, tbe plaintiff’s wife, wbo bad an infant six days old, was suddenly taken worse. Tbe plaintiff asked tbe defendant’s agent at Nebo to send a message to Dr. Brookshire at Bridgewater, 6 miles away. It was a little after 9 o’clock at nigbt. Tbe agent said tbat be would send it “if there was nothing tbe matter at tbe other end of tbe line.” Tbe message read as follows: “Dr. Brookshire, Bridgewater, N. C.: Come at once. My wife very sick. T. W. Carswell.”
Tbe plaintiff paid for tbe message. Tbe message was received by tbe operator at Bridgewater, but was not delivered till 12 o’clock at nigbt, when tbe plaintiff himself passed tbe station at Bridgewater, and tbe operator came out and banded him tbe message and asked him to deliver it to Dr. Brookshire. Tbe plaintiff getting no response from Bridgewater, assumed that all was right at tbat end, and tbat tbe message bad been re
The defendant’s operator at Bridgewater testified that he received the message about 9 o’clock, which was after office hours, and that he wired back to the operator at Nebo that he could not deliver it before 11 o’clock. There is no evidence that this message was communicated to the plaintiff. On the contrary, when the plaintiff offered to testify as to what the operator at Nebo told him, the evidence was excluded on the objection of the defendant. The reasonable inference is that he would have testified that the information he received was that the operator at Bridgewater had wired back that he would deliver the message. The plaintiff’s conduct corroborates this, for he testifies that he remained for two hours longer waiting for Dr. Brookshire, expecting him to come.
This case is “on all-fours” with Carter v. Tel. Co., 141 N. C., 374, which holds that while the telegraph company can fix reasonable office hours, yet when the operator at the sending office received this message, he waived this regulation; and when the operator at the receiving office took the message, he also waived the office hours regulation, and if he could not deliver the message he should promptly have so wired back. It is true that the operator at Bridgewater did testify that he so wired, but the burden was on the defendant to show that such service message was delivered to the plaintiff, or that without its negligence this could not be done. It is not shown that this service message (if it was sent) was delivered to the plaintiff, and, on the contrary, the plaintiff was not allowed, by reason of defendant’s objection, to testify what the agent at Nebo told
In Cogdell v. Tel. Co., 135 N. C., 436, the Court said that “It is the duty of the telegraph company to promptly inform the sender of a message when, for any reason, it cannot be delivered,” citing Hendricks v. Tel. Co., 126 N. C., 304; Laudie v. Tel. Co., ib., 431; Bright v. Tel. Co., 132 N. C., 324; Hinson v. Tel. Co., 132 N. C., 467; and Bryan v. Tel. Co., 133 N. C., 603, in all of which it had been so held. The same ruling has been made since in Green v. Tel. Co., 136 N. C., 507; in Carter v. Tel. Co., 141 N. C., 378; and in other cases. In Suttle v. Tel. Co. the same doctrine is laid down, the Court citing many cases holding that the telegraph company may waive its office hours, and does so if it receives the message at the sending office, and also at the receiving office, if no objection is communicated back to the sender. In Cates v. Tel. Co., 151 N. C., 500, Walker, J., cites and approves Carter v. Tel. Co., 141 N. C., 378, and Suttle v. Tel. Co., 148 N. C., 480, and pertinently says of the operator at the receiving office in Carter’s case: “His silence was calculated to mislead the sender, who could have procured the early attendance of her physician at her bedside by other means, if he had known of the true situation. That decision was right, and in perfect accord with our decision in this ease.” In the present case if the defendant company had communicated to the plaintiff that it could not promptly deliver this message, the plaintiff would have gone at once to Bridgewater, without waiting two hours as he did, witnessing
There was ample evidence to submit the issues of negligence to the jury. The other exceptions are covered by repeated decisions of this Court, and' need no discussion.
No error.