83 S.E. 164 (N.C. 1914), 244, Betts v. Western Union Telegraph Co.

Docket Nº:244.
Citation:83 S.E. 164, 167 N.C. 75
Opinion Judge:WALKER, J. (after stating the facts as above).
Attorney: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.
Judge Panel:[Signed] Raymond.
Case Date:October 21, 1914
Court:Supreme Court of North Carolina

Page 164

83 S.E. 164 (N.C. 1914)

167 N.C. 75




No. 244.

Supreme Court of North Carolina

October 21, 1914

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

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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...

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