Cashion v. Western Union Tel. Co

• Decision Date: 11 April 1899
• Citation: 32 S.E. 746,124 N.C. 459
• Court: North Carolina Supreme Court
• Parties: CASHION. v. WESTERN UNION TEL. CO.

32 S.E. 746

(124 N.C. 459)

CASHION.

v.WESTERN UNION TEL. CO.

Supreme Court of North Carolina.

April 11, 1899.

Telegraph Companies—Messages for Benefit op Another—Kelationship op Parties—Notice —Failure to Deliver—Damages.

Where an agent sends a telegram, in his own name, announcing a death, and requesting the addressee to come, his failure to notify the company of the relation of the addressee and his principal, and that it is sent for the lat-ter's benefit, will not preclude a recovery by his principal.for mental suffering occasioned by a failure to deliver.

Appeal from superior court, Iredell county; Shaw, Judge.

Action by Anna Cashion against the Western Union Telegraph Company to recover damages for failure to promptly deliver a message. Prom a judgment for plaintiff for the amount paid for its transmission, she appeals. Reversed.

L. C. Caldwell and J. P. Gamble, for appellant.

Jones & Tillett, for appellee.

DOUGLAS, J. This case was here before, and is reported in 123 N. C. 269, 31 S. E. 493. It is now before us on an exception to the charge of the court below, which is stated in the record as follows: "The following is the charge of the court pertinent to the determination of the contention of the parties: 'The plaintiff contends that, by reason of the delay in the delivery of this telegram, her brother-in-law was prevented from being present with her, and that by reason of the absence of her brother-in-law upon this occasion she suffered mental anguish; that she suffered more than she would have suffered, under the circumstances, on account of the death of her husband. Now, to determine this question, the court charges you that there is no presumption of law that plaintiff suffered mental anguish on account of the ab sence of J. W. Mock; that the fact that she stood in relation to him as a sister-in-law, and the further fact of his being prevented from being with her, would not have raised the presumption that she suffered mental anguish on account of his not being there, but the burden is on the plaintiff to show by the preponderance of the evidence that there was existing between plaintiff and J. W. Mock such tender ties of love and affection as that his presence, advice, and sympathy with her in Morganton, and on the journey to States-ville, would have given her comfort and con-solation in her distress, and would have pre-vented her from suffering to the extent she says that she actually suffered. But if you should find that such a relation existed between plaintiff and J. W. Mock, yet, as the plaintiff admits that she did not sign the telegram, and that her name is not mentioned iu the telegram, and that Payne signed and sent the same as the agent of the plaintiff, before she can recover damages for mental anguish occasioned by the failure of J. W. Mock to be present with her upon this occasion the burden is upon the plaintiff to show, by a preponderance of the evidence, that at the time the message was delivered to the defendant company the said company was notified of the fact that the telegram was sent for the benefit of the plaintiff, and also of the relations existing between her and J. W. Mock. And the court charges you that there is no evidence that the defendant telegraph company had any notice that the telegram was sent for the benefit of the plaintiff, or that it had any notice of the relationship existing between the plaintiff and the said J. W. Mock; and your answer to the second issue cannot be more than twenty-five cents, —the cost of the telegram. The plaintiff does not contend that there was any physical injury to herself resulting from the alleged negligence, but the allegation in the complaint is for mental anguish suffered by her; and as the plaintiff has failed to show that the defendant company had notice that the telegram was sent for her benefit, or had notice of the relationship existing between her and J. W. Mock, she cannot recover in this action, except the twenty-five cents paid for the telegram. If you should answer the first issue "Yes, "—that the defendant company was guilty of negligence, —your answer as to the second issue can, under no circumstances, be more than twenty-five cents.'" There was a verdict, and the following Is the judgment of the court: "This cause coming on to be heard at this term of the court before Shaw, Judge, and a jury, and being heard upon the whole record, and the following issues submitted: (1) 'Was the defendant guilty of negligence as alleged in the complaint?' to which the jury answered, 'Yes.' And (2) ...