Betts v. Western Union Telegraph Co.

Decision Date21 October 1914
Docket Number244.
Citation83 S.E. 164,167 N.C. 75
PartiesBETTS ET AL. v. WESTERN UNION TELEGRAPH CO.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Wake County; Allen, Judge.

Actions by Ovey J. Betts and by Raymond Betts against the Western Union Telegraph Company. Judgment for plaintiff in each case and defendant appeals. Affirmed.

It was proper for counsel, in arguing a legal question to the court in the jury's presence, to state the facts in another case decided by a per curiam order of the Supreme Court and claimed to be an authority for counsel's position.

The actions were brought to recover damages for defendant's alleged negligent failure to deliver a telegram in the following words:

"To Ovey J. Betts, Technical School, Rogersville, Tenn.

Clifton died suddenly this morning. Funeral to-morrow afternoon. Have written.

[Signed] Raymond."

The message was delivered to defendant's operator at Raleigh N. C., on Sunday, June 23, 1912, at 4:15 p. m., and was transmitted at 4:19 p. m. The operator promised to "get it through." It was received at Rogersville, but was never delivered. The addressee accidently read in a newspaper, about 12 o'clock m. on the following Tuesday (June 25, 1912), an article which caused him to think that his brother Clifton Betts had been killed by his younger brother. He then wired by the Postal Union Telegraph Company asking for information at once. He was answered by the same line immediately, "Clifton died suddenly. Come at once," to which he replied by same line, "Will come home at once." The entire time consumed in the transmission and delivery of these three messages was about two hours, and Ovey Betts wired from Rogersville, the place to which the original telegram announcing Clifton's death was addressed. It also appears that he was at the Technical School, near Rogersville, at the time this message was received, and it could have been properly delivered to him by the exercise of proper care and diligence. The jury so found. The two cases were consolidated and tried together; the jury returning the following verdict:

"(1) Was the defendant guilty of negligent delay in the transmission or delivery of the message sued on, as alleged in the complaint? Answer: Yes.

(2) What damages, if any, is the plaintiff Ovey J. Betts entitled to recover? Answer: Five hundred ($500) dollars.

(3) What damages, if any, is the plaintiff Raymond Betts entitled to recover? Answer: Two hundred and fifty ($250) dollars."

On June 25, 1912, the Western Union Telegraph Company's operator at Rogersville sent a service message, stating that Ovey J. Betts could not be found at the school, and asking for a better address. The operator at Raleigh notified Raymond Betts of this message on the night of the said Tuesday, and this was the only notice he had received that his first message to his brother, Ovey J. Betts, announcing the death of Clifton Betts, had not been delivered. There is a telephone line from Rogersville to the Technical School, where Ovey J. Betts was living at the time the first message was sent, by which telegrams were customarily transmitted to the school. Ovey J. Betts testified that he would have left Rogersville for his old home at once, to attend the funeral of his brother Clifton Betts had he received the first message, and would have arrived at Raleigh, according to the railroad schedule, at 7:30 p. m. on Wednesday, and Raymond Betts testified that he would have postponed the funeral until his arrival. It appears that when Ovey J. Betts was informed that his brother Clifton Betts had been killed by his younger brother, Levern Betts, as it turned out accidentally, he immediately wired, "Will come at once," and left Rogersville by conveyance for Morristown, Tenn., where he caught the first train out for Raleigh. This was on Tuesday, and he arrived at Raleigh Wednesday, June 26, 1912. If the first message had been delivered promptly he could not have reached Raleigh in time for the funeral, unless the latter had been postponed. The train arriving at Raleigh Monday night, June 24, 1912, was three hours late. The court rendered judgment according to the verdict, and defendant appealed.

Geo. H. Fearons, of New York City, and Pace & Boushall, of Raleigh, for appellant.

B. M. Gatling and P. H. Busbee, both of Raleigh, for appellees.

WALKER, J. (after stating the facts as above).

There was evidence that Ovey J. Betts had suffered mental anguish, and we think there can be no serious question raised on this branch of the case. There was testimony from which the jury could reasonably have inferred that Ovey J. Betts, if he had received the message sent by defendant's line, would have left at once for home, and notified his brother, or some relative there, of his coming, and as his brother Raymond Betts would have postponed the funeral, he would have had the consolation of attending it, which was lost by the defendant's negligence. It seems that Clifton was his favorite brother, and the jury might well have found that he suffered mental anguish, as he was deprived of the privilege of paying this tribute to his memory by taking part in these last sad rites. As to Raymond Betts, we are also of the opinion that there is evidence from which the jury may reasonably have drawn the conclusion that he had endured mental anguish, being deprived of the presence, society, and consolation of his brother at the funeral, and not knowing why his message was unanswered. Discussing a similar question in Bright v. Telegraph Co., 132 N.C. 317, 43 S.E. 841, this court said:

"A woman suddenly bereft of her husband and who has no father or other relative or friend to whom she can turn in her distress, except the uncle of her husband, might well call upon him for consolation and assistance, especially when, as is abundantly shown by the evidence in this case, he was her husband's nearest living relative and had raised and educated him and was 'devoted to her husband and herself,' and stood towards them in the place of a parent. She had every right to expect that, as soon as the sad news of the death of her husband had reached him, he would come at once to her and give her that comfort, consolation, and assistance which she sorely needed. If he was not her father, he entertained for her all of the tender regard and affection of a parent, and was as much interested in her welfare as if he had been her father, and she could therefore reasonably expect that he would do under the circumstances precisely what her father would have done if he had been living."

And to the same general effect is Cashion v. Telegraph Co., 123 N.C. 267, 31 S.E. 493:

"We do not mean to say that damages for mental anguish may not be recovered from the absence of a mere friend, if it actually results, but it is not presumed. The need of a friend may cause real anguish to a helpless widow left alone among strangers with an infant child and the dead body of her husband. In the present case the plaintiff seems to have received the full measure of Christian charity from a generous community, but it may be that she did not expect it, and looked alone to her brother-in-law, whose absence she so keenly felt. If so she may prove it."

As substantially said by Justice Brown, in Harrison v. Telegraph Co., 143 N.C. 147, 55 S.E. 435, 10 Ann. Cas. 476, the testimony in this case, if believed, tended to prove something more than mere disappointment, and should be submitted to the jury, that they may find whether or not mental anguish was really suffered.

But defendant earnestly contends that the face of the message furnished no notice to the company that mental anguish would result. We need not pause here to consider the distinction between actions in tort and those in contract, with a view of determining what damages may be recoverable. Penn v Telegraph Co., 159 N.C. 306, 75 S.E. 16, 41 L. R. A. (N. S.) 223. Numerous decisions of this court are to the effect that the company must be informed of the nature of the message, either by its words or by facts brought to its attention extraneously. Williams v. Telegraph Co., 136 N.C. 82, 48 S.E. 559, 1 Ann. Cas. 359; Harrison v. Telegraph Co., 143 N.C. 147, 55 S.E. 435, 10 Ann. Cas. 476; Suttle v. Telegraph Co., 148 N.C. 480, 62 S.E. 593, 128 Am. St. Rep. 631. But we have also held in as many cases that the message itself may be sufficient to impart the requisite knowledge, and this is so when its great importance is disclosed by the fact that it relates to the illness or death of a person. "When this is the case (as said in ...

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