Lytle v. Western Union Tel. Co.
| Decision Date | 13 May 1914 |
| Docket Number | 554. |
| Citation | 81 S.E. 759,165 N.C. 504 |
| Parties | LYTLE v. WESTERN UNION TELEGRAPH CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rutherford County; Justice, Judge.
Action by F. C. Lytle against the Western Union Telegraph Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.
Action for negligent delay in delivering a telegram. It appears from the evidence that the plaintiff's mother, who resided in Blacksburg, S. C., died on the 2d day of June, 1911, and that at 6:16 p. m. on the same day a message was filed at Blacksburg, S. C., addressed to the plaintiff at Altapas, N C., care of Altapas Inn, reading: "Your mother died this p. m. at 6 o'clock." This message was delivered to the plaintiff at 9:30 a. m. on June 3d, and the plaintiff left Altapas at 2:24 that afternoon and reached Blacksburg at 9 o'clock that night. There was a train leaving Altapas at 6:15 a. m., and, if the plaintiff had caught that train she would have gotten to Blacksburg at 4 o'clock in the afternoon. When the plaintiff arrived at Blacksburg, she found that her mother had been buried at 5:30 p. m. The plaintiff received the message through the clerk of the hotel at Altapas, to whom it had been delivered by the defendant. As the plaintiff was leaving Altapas, she had a conversation with Mr. Sloan, the defendant's agent, who told her that he was sorry that the message had not been delivered the night before. The plaintiff returned to Altapas a few days afterwards, and told the agent the delay of the message had caused her not to see her mother buried. The agent was reticent about it, and the plaintiff then stated, "Some one will have to pay for this." This last conversation took place just a few days after the funeral. If the plaintiff had received the telegram before the 6:15 a. m train on July 3d, she could and would have gone on that train and would have arrived at Blacksburg at 4 o'clock that afternoon. The plaintiff introduced evidence tending to show that she suffered mental anguish because she did not see her mother buried, and also on account of the fact that she knew some of her mother's wishes were not carried out. The message introduced in evidence by the plaintiff contained the following stipulation: "The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission." The plaintiff testified further that no written claim for damages had ever been filed and no suit brought until the 19th day of October, 1911; the summons issued on that date having been served on the defendant October 20th. At the close of the testimony, the court gave judgment of nonsuit, and plaintiff appealed.
Where a stipulation in a telegraph message requires claims to be presented in writing within 60 days, the claim must identify the message, state the negligence, and so set forth the nature of the demand as to enable the company to ascertain whether it is liable.
A stipulation in a telegraph message requiring claims for damages to be presented in writing within 60 days was not complied with by a casual remark of the addressee to the agent that the message had been delayed, preventing her from attending her mother's funeral, and that some one would have to pay for it.
Pless & Winborne, of Marion, and York Coleman and D. F. Morrow, both of Rutherfordton, for appellant.
A. S. Barnard, of Asheville, for appellee.
WALKER. J. (after stating the facts as above).
It is stated in the briefs that the court granted the nonsuit upon the ground that the plaintiff had not complied with the stipulation between the parties that the claim for damages must be presented in writing within 60 days after the message is filed with the company for transmission. This, we have held, is a reasonable provision, and, if not complied with defeats a recovery. Sherrill v. Telegraph Co., 109 N.C. 527, 14 S.E. 94; Lewis v. Telegraph Co., 117 N.C. 436, 23 S.E. 319; Sykes v. Telegraph Co., 150 N.C. 431, 64 S.E. 177; Barnes v. Telegraph Co., 156 N.C. 150, 72 S.E. 78. It is said in Jones on Telegraph & Telephone Companies, § 393: ...
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