Marquette Et Ux v. Western Union Tel. Co

• Decision Date: 12 October 1910
• Citation: 153 N.C. 156,69 S.E. 73
• Parties: MARQUETTE et ux. v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

69 S.E. 73

(153 N.C. 156)

MARQUETTE et ux.

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina.

Oct. 12, 1910.

Telegraphs and Telephones (§ 66^*)—Messages—Delay in Delivery—Evidence. Evidence in an action for delay in delivery of a telegram held insufficient to authorize a finding that it was received in time to be delivered on the day prior to delivery.

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

Appeal from Superior Court, Lenoir County; Cooke, Judge.

Action by John F. Marquette and wife against the Western Union Telegraph Company and another. Judgment for plaintiffs. Defendant named appeals. Reversed.

Civil action brought by the feme plaintiff against the Western Union Telegraph Company and the Postal Telegraph Company for damages caused by alleged negligence in the transmission and delivery of the following telegram, set out in the complaint, and the original of which was introduced in evidence by the plaintiff, viz.:

Postal Telegraph Commercial Cables. Telegram.

Time filed Check,

10:15 P. M. Baltimore, Md., March 13th, '09. 48 W. MF FR-4 Paid. RUSH. Mrs. John F. Marquette,

Kinston, N. C.

Coming on first train. John. 11P.

This telegram was delivered to the sendee at 9:15 a. m. on Sunday, March 14, 1909. It appears in the record that the controversy was settled as to the Postal Company upon payment by that company of all "costs and disbursements in this action." The issues relating to the Western Union are as follows:

"(1) Did the defendant, the Western Union Telegraph Company, negligently fail to deliver the message complained of to the plaintiff? Answer: Yes."

"(2) What damage, if any, has the plaintiff sustained on account of mental anguish caused by such negligence? Answer: Six hundred and fifty dollars ($650)."

The court reduced the damages by consent of plaintiff to $300 and rendered judgment against the Western Union Telegraph Company. Defendant excepted and appealed.

There was a motion in apt time by appellant to nonsuit, which was renewed at the close of all the evideuce. It was denied, and defendant excepted.

John D. Bellamy, for appellant.

G. V. Cowper and W. D. Pollock, for appellees.

BROWN, J. In the clear and exhaustive charge of his honor, the liability of the defendant, the Western Union Telegraph Company, for the damages claimed, is made to depend upon one theory only, and that is that this defendant received the telegram at its Kinston office on the night of March 13th in time for delivery that night, and failed to deliver it until the following morning. The learned judge charged as follows: "If the jury shall find by the greater weight of the evidence that the Western Union agent at Kinston received that message on the night of the 13th and negligently failed to deliver the same until the next morning, and the jury shall find by the greater weight of the evidence that the said agent at Kinston had notice of the cause of the telegram, then the jury should allow such damages as they shall be satisfied by the greater weight of the evidence would be reasonable compensation for the mental anguish which the feme plaintiff suffered." The defendant contends that there is no sufficient evidence that the message was received at its Kinston office on the night of March 13th, but that all the evidence shows that it was not and could not have been received there until about 9 a. m. March 14th, and delivered at 9:15 a. m.

The only evidence we can find to support this theory is that on Saturday night, March 13th, defendant's messenger called about 9:30 p. m. on Mrs. B. F. Marquette, with a Western Union telegraph envelope, addressed to Mrs. John F. Marquette. Mrs. B. F. Marquette did not open the envelope, but directed the messenger to where Mrs. John Marquette resided. It is further contended that the telegram delivered Sunday morning was on a blank that was dry, when, if it had been copied, it should have been somewhat damp...