Action for damages, arising from delay in delivering a telegram to plaintiff, as follows:
"STATESVILLE, N.C. 13 October, 1916.
"R. H. PIERSON, Lenoir, N.C.
"Come to Statesville at once. Hamp's child dying. J. H. HOLDEN."
These issues were submitted:
1. "Was the defendant guilty of negligence in respect to the transmission and delivery of the telegram to the plaintiff, R. H. Pierson?" Answer: "Yes."
2. "If so, was the plaintiff, R. H. Pierson, injured thereby?" Answer: "Yes."
3. "What damages, if any, has the plaintiff sustained?" Answer: "Three hundred dollars."
From the judgment rendered defendant appealed. The message was filed with defendant company as a night message, for transmission on Saturday, 13 October, 1906, at 8 P. M. It was delivered to the plaintiff on Monday morning, between 9 and 10 o'clock. That this is gross negligence is not open to discussion. Assuming that it was filed and accepted as a night message, (561) under the rules of the company, it should have been delivered next morning about 8 o'clock, according to the testimony of defendant's operator. It was not received at Lenoir until 9:42 A. M. Sunday, and when received at Lenoir it was addressed to the care of Jim Betler instead of Jim Booth, but there is no evidence that plaintiff is chargeable with that error. There is no evidence of any effort being made Sunday morning to find plaintiff or Jim Betler in Lenoir, although the former resided within two hundred yards of the telegraph office. We think his Honor did not err in directing the jury that if they believed the evidence to answer first issue "Yes."
The real defense of the defendant is based upon the theory that if the telegram had been delivered on Sunday morning, according to contract, the plaintiff could not have reached Statesville in time to attend the funeral, and that therefore the plaintiff has failed to show that defendant's negligence was the proximate cause of the injury. It is plain that there was no train leaving Lenoir on Sunday morning which he could have taken, as the only Sunday train left at 5 A. M.; but plaintiff testified that he would have gone to Statesville Sunday morning had he received the message, and that he could have gotten there for the funeral by driving to Hickory. The possibility of such an achievement was contested by defendant, but we think his Honor properly submitted the question to the jury when he told them "that the plaintiff must show to your satisfaction that he could have gone to Statesville before the funeral." Upon this contention his Honor fairly submitted to the consideration of the jury the evidence and facts relied on by defendant as well as plaintiff.
It is further contended that there is no evidence that the plaintiff suffered any mental anguish.
The character of the message put defendant upon notice of its importance to the sendee and that it was sent for his benefit. The testimony shows that the dying child was plaintiff's niece, with whom he had lived in his brother's house, and that he was much attached to her. It is true that plaintiff does not use as strong language in (562) endeavoring to portray his grief as is sometimes employed, but facts sometimes speak louder than words, and both together made out a case sufficiently strong to be submitted to the jury.
No error.
Cited: Cotton Mills v. R. R., post, 611. *Page 462