Bennett v. Western Union Telegraph Co.

This is an appeal from a nonsuit in an action to recover damages for mental anguish caused by failure to deliver a telegram. The plaintiff left the bedside of his brother, who was quite ill at his home near Bennettsville, S.C., on Sunday afternoon, 28 April, 1912. The physicians told him that he might safely leave, but he enjoined the family to wire him if his brother grew worse. Next morning the brother-in-law of the brother phoned to Hamlet and caused the following telegram to be sent, addressed to the plaintiff at Raeford, N.C.: "Come back to see your brother at once. W. H. Pearson." This telegram was filed at 9 a. m., according to the evidence for the plaintiff, which must be taken as true on this appeal.

The plaintiff testified that he called that day at the defendant's office in Raeford three times, i. e., at 12 o'clock, at 1 p. m., and again at 3 p. m., and asked for a telegram, but was told there was none for him; he left at 3 p. m., and asked the defendant's agent to forward the telegram, if any came for him, to Aberdeen. This was not done, and he did not receive the telegram till he got back to Hamlet Tuesday night and had learned that his brother had died at 2:30 p. m. that day. (498) The defendant company then presented a bill for 25 cents for the telegram, which the plaintiff says he paid under protest, saying that he would bring suit for damages.

The plaintiff further testified that at Raeford he was 35 miles from his brother's home, and if the telegram had been delivered, he would at once have gone to his brother's bedside either by train, which made connection, or through the country by automobile or with horses. He testified to the close and affectionate relations that existed between him and his brother, and the mental anguish he suffered by reason of being deprived of an opportunity of seeing him again by reason of the nondelivery of the telegram.

On the back of the telegraph blank was the usual requirement that any claim for damages must be presented to the company in writing within sixty days after filing the message. This regulation has been held reasonable and valid in Sherrill v. Tel. Co., 109 N.C. 527, and has been often approved since; see citations in Anno. Ed.

The plaintiff further testified that on 29 May, 1912, he wrote a letter addressed to the defendant's agent at Hamlet, which he posted himself in the post office at Georgetown, S.C. The court would not permit him to testify as to the contents of this letter. He thereupon served notice on the defendant's counsel to produce the letter, and this not being done, the court permitted him to testify that in said letter he stated to the company that he "would make demands on it for $5,000 for nondelivery of the telegram sent to him at Raeford on 29 April, 1912." He was then asked: "Did you tell him (the addressee of the letter) what the telegram was, or what the nature of it was?" On objection by the defendant, this was ruled out, and the plaintiff excepted, as he also did to the nonsuit, which was granted on motion of the defendant.

It was error to exclude the question, which was asked to show more fully the contents of the letter, and it was also error to grant the nonsuit. The court seems to have been of opinion that the letter was not sufficient to identify the telegram. But there was no evidence of any other telegram sent from Hamlet to the plaintiff on 29 April, or on any other day. There was also evidence, which must be taken as true, that the defendant had been already put on notice by the plaintiff of his dissatisfaction, at the time payment was collected from him for the telegram.

The object of the sixty days notice, as stated in Sherrill v. Tel. Co.,supra, is to give the telegraph company notice within sixty days, before its records may be sent off or the memory of its agents becomes indistinct. This letter was sufficient to recall the matter to the attention of the agent at Hamlet, and was mailed within the sixty days.Lytle v. Tel. Co., 165 N.C. 504. Such mailing raised the (499) "presumption that the letter was received, and therefore was duly served." Cogdell v. R. R., 132 N.C. 852, citing Bragaw v. SupremeLodge, 124 N.C. 154.

The judgment of nonsuit is

Reversed. Cited: Lynch v. Johnson, 171 N.C. 624; Parks v. Comrs. of Lenoir,186 N.C. 500; Waters v. Tel. Co., 194 N.C. 196; Newbern v. Tel. Co.,195 N.C. 261.