Barnes v. Postal Tel.-cableco

• Decision Date: 27 September 1911
• Citation: 72 S.E. 78,156 N.C. 150
• Court: North Carolina Supreme Court
• Parties: BARNES v. POSTAL TELEGRAPH-CABLECO.

72 S.E. 78

156 N.C. 150

BARNES

v.POSTAL TELEGRAPH-CABLECO.

Supreme Court of North Carolina.

Sept. 27, 1911.

1. Telegraphs and Telephones*(§ 60^*)—Delay in Delivery—Evidence.

In an action for delay in delivery of message, evidence held to show that the company was not guilty of any negligence.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. § 63; Dec. Dig. § 66.*

2. Telegraphs and Telephones (§ 68*) — Damages—Mental Anguish.

A recovery cannot be had for mental anguish suffered from delay in delivering a telegram, unless it is coupled with negligence proximately causing the injury.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70;

Dec. Dig. § 68.*]

3. Telegraphs and Telephones (§ 51*)—Delay in Delivery—Defenses — Contributory Negligence.

To authorize a sendee to recover for negligent delay in delivery of a telegram, he himself must have been without negligence contributing to the delay.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent Dig. § 35; Dee. Dig. § 51.*]

4. Telegraphs and Telephones (§ 37*)— Messages—Care Required.

Telegraph companies need only exercise that degree of care in delivering messages which one of ordinary prudence would use under like circumstances.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Dec. Dig. § 37.*]

5. Telegraphs and Telephones (§ 40*)— Messages—Contract—Delivery.

Since a telegraph company cannot disclose the contents of a message to other than the sendee without the permission of the sender or sendee, the company under its usual contract need not telephone the message, nor has it the right to do so to one not the agent of the sendee, unless authorized to receive it.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Dec. Dig. § 40.*]

6. Telegraphs and Telephones (§ 54*) — Messages — Actions — Conditions Precedent—Written Demand.

A stipulation in a contract for the transmission of a telegram requiring a claim in writing to be presented to the company within 60 days after it is filed for transmission, in order to maintain an action for negligence in its transmission, is reasonable and valid, and must be complied with.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. § 42; Dec. Dig. § 54.*]

Appeal from Superior Court Martin County; Ward, Judge.

Action by F. M. Barnes against the Postal Telegraph-Cable Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

H. W. Stubbs and S. A. Newell, for appellant.

R. C. Strong, for appellee.

WALKER, J. This action was brought to recover damages for mental anguish, alleged to have been caused by the negligent delay of the defendant in transmitting anddelivering a telegram. The message, dated November 26, 1909, was addressed by Mrs. Frank Barnes to Francis W. Barnes at Williamston, N. C, and read as follows: "Come at once. Your father very sick." It was transmitted from the initial point to Greenville with due promptness, and reached the office in that place at 8 o'clock a. m. The defendant had no office at Williamston, and the agent at Princess Anne so notified the sender. He also told her that it would have to be sent by telephone, owned by another company, from Greenville to Williamston, for which a charge or toll of 25 cents would be made by that company. When the message was received by the operator at Greenville, "he put in a long-distance call for Mr. Barnes at Williamston, and he was informed that Mr. Barnes was not there, but in the woods four or five miles away; he being a lumberman." The operator of the defendant at once instructed the telephone operator "to keep in the call for Williamston"—that is, to get Mr. Barnes as soon as it could be done—but he did not return until about 5:30 o'clock p. m., when the message was communicated to him by telephone. The plaintiff alleges that had the message been delivered to him at 8 o'clock a. m. on November 26th, the day it was sent, he could have left by the 8:28 a. m. Atlantic Coast Line Railroad Company train, and reached his father's bedside 17 hours before his death, which occurred about 5 oclock p. m. November 27, 1909. We do not well see how he could have done any such thing. It would seem to be a physical impossibility. By his own calculation, there would be only 28 minutes of time for the relay of the message at Greenville, and the delivery of it to him at Williamston, he being at the time, according to his own statement, 4½ miles from his home. Some time must be consumed in making the necessary connection between telegraph and telephone lines, and in making the call on the "long-distance phone" for him. He had to travel 4½ miles to Williamston to catch the train. To charge the defendant with negligence under such circumstances would be anything but justice. Plaintiff says he could have taken the 4:30 p. m. train out of Williamston on November 26, 1909, and arrived at Princess Anne at 2:23 p. m. on November 27, 1909, a few hours before his father's death.

But the crucial fact in the case is that plaintiff was not at home, but some distance therefrom, and this is what prevented an earlier delivery of the message. It was his misfortune, and not the defendant's fault, and plaintiffs fail so often to distinguish between the two. The service rendered to the plaintiff in the effort to reach him with the message was far more prompt and efficient than was the service in Marquette v. Telegraph Co., 153 N. C. 156, 69 S. E. 73, which we so recently held to be sufficient in law. We will hold these com panies to a strict accountability in the performance of their duties and obligations to the public and their patrons, but we are impelled by our sense of justice to apply the law fairly and reasonably, and not to rule harshly and oppressively in regard to the measure of diligence required of them in the delivery of messages.

It is not mental anguish alone that entitles a plaintiff to recover, however much he may have suffered, but it must be coupled with the negligence of the company, and, too, that negligence must be the...