Suttle v. Western Union Tel. Co

• Decision Date: 21 October 1908
• Citation: 62 S.E. 593,148 N.C. 480
• Parties: SUTTLE. v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

62 S.E. 593

148 N.C. 480

SUTTLE.

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina.

Oct. 21, 1908.

1. Telegraphs and Telephones (§ 38^*)— Contracts for Delivery of Messages-Office Hours.

A telegraph company, receiving a message and undertaking to deliver it at a time not within its office hours, must do so because of the special updertaking which constituted a waiver by it of the benefit of office hours.

[Ed. Note.—For other cases, see Telegraphs & Telephones, Cent. Dig. § 33; Dec. Dig. §38.*]

2. Telegraphs and Telephones (§ 31*).

A telegraph company may prescribe reasonable office hours, but may waive them.

[Ed. Note.—For other cases, see Telegraphs & Telephones, Cent. Dig. § 20; Dec. Dig. § 31.*]

3. Telegraphs and Telephones (§ 68*)— Nondelivery of Messages — Damages— Mental Anguish.

Where a telegraph company, receiving a message for delivery the same day, was informed of the necessity of such delivery and knew that, if it was delayed until the following day, the object of the message would be defeated and that the sendee would suffer mental anguish, and agreed to deliver the message on the day it received it, the sendee could recover for mental anguish suffered from failure to deliver the message until the following day.

[Ed. Note.—For other cases, see Telegraphs & Telephones, Cent. Dig. §§ 69-70; Dec. Dig. § 68.*]

4. Telegraphs and Telephones (§ 68*).

Where a husband, delayed in reaching home by a railroad wreck, gave a message to a telegraph company for delivery to the wife, announcing the cause of the delay and falsely stating that he was not injured, and the company negligently delayed the delivery of the message to the wife, who suffered mental anguish in consequence thereof, the negligence of the company was the proximate cause of her injury, authorizing a recovery.

[Ed. Note.—For other cases, see Telegraphs & Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.*]

5. Telegraphs and Telephones (§ 37*).

A telegraph company, receiving a message for delivery, cannot disregard the knowledge of the facts which are apparent, and plead its own ignorance as an excuse for its failure to deliver the message.

[Ed. Note.—For other cases, see Telegraphs & Telephones, Cent. Dig. § 32; Dec. Dig. § 37.*]

Appeal from Superior Court, Johnston County; Long, Judge.

Action by Mrs. Bettie L. Suttle against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to recover damages for failing to deliver a telegram, and was heard below on a case agreed, which is as follows:

"It is admitted by counsel on both sides that the telegram set out in the complaint was delivered to the agent of the defendant at Raleigh, N. C., at 7:27 o'clock p. m., May 19, 1903, and it was received by the operator at Smithfield, agent of defendant, at 8:25 p. m. on the same night; that the message was delivered to Mrs. Suttle at 9 o'clock a. m. the next day, to wit, May 20, 1903; and that the business hours of the Western Union Telegraph Company at Smithfleld are from 8 a. m. to 8 p. m."

The court by consent of the parties, found the following facts from the depositions submitted:

"(1) The plaintiff, J. W. Suttle, left Smith-field on the morning of May 19th to spend the day in Raleigh, expecting to return to Smithfield on the afternoon train, and he so told his wife before leaving home that morning.

"(2) The plaintiff, J. W. Suttle, did not return to Smithfield on the afternoon of May 19th, because the train on which he was returning to Selma was wrecked; but he returned to Raleigh from the wreck, and at 7:27 filed with the defendant's agent at Raleigh the telegram set out in the complaint and addressed to his wife, Mrs. J. W. Suttle, Smithfield, N. C, which was as follows: 'Esta and I were in wreck, not hurt, will be home to-morrow.'

"(3) In addition to the notice of the importance of the prompt delivery of said telegram appearing from the face of the message, the said J. W. Suttle, at the time of delivering the message, asked the operator if the message would be delivered to his wife that evening, and was told by the operator that it would. J. W. Suttle said to the operator that, if he thought it would not reach her that evening, he would be compelled to drive home through the country, because he knew his wife would hear of the wreck and would spend a miserable night, not knowing whether he was hurt or not in the wreck.

"(4) By reason of the failure to deliver the telegram promptly on the evening of May 19, 1903, the plaintiff, Mrs. Suttle, suffered great mental anguish as described by her. If the telegram had been promptly delivered upon its receipt at Smithfield, to wit, 8:30 o'clock p. m., May 19, 1903, the feme plaintiff would not have suffered the mental anguish as testified to by her.

"(5) Notwithstanding the facts set out in the telegram, Mr. Suttle did receive certain hurts by the wreck, which are set forth in the evidence.

"Upon the admission of counsel for plaintiff and defendant, and the finding of facts by the court, it is considered by the court that the defendant was guilty of negligence in failing to promptly deliver the telegram set out in the complaint to the feme plaintiff, and that the plaintiff recover of the defendant the sum of $175, together with the costs of this action, to be taxed by the clerk."

It was agreed that, if the plaintiff is entitled in law to recover, the damages should be assessed at $175. The defendant excepted to the judgment of the court, and appealed.

R. C. Strong, for appellant.

Pou & Brooks, for appellee.

WALKER, J. (after stating the facts as above). It is too late now to question the proposition that, if a telegraph company receives a message from the sender and undertakes to deliver it to the sendee at a time not within its office hours, it is its legal duty to do so, because of the special undertaking, which constitutes a waiver by it of the benefit of office hours. It may prescribe office hours, when they are reasonable; but it may also waive them, if it sees fit to do so. Bright v. Telegraph Co., 132 N. C. 317, 43 S. E. 841; Kernodle v. Telegraph Co., 141 N. C. 436, 54 S. E. 423; ...