WALKER and BROWN, JJ., concurring in result. On 13 February, 1913, the plaintiff filed in the defendant's office at Johnson City, Tenn., a message addressed to his wife, "Bakersville, N.C.via Toecane," reading as follows: "Am coming home today; have conveyance at station."
Exceptions 1 and 15 are that the plaintiff was allowed to testify that at 12 o'clock noon, about an hour after he had filed the message, he again went to the defendant's office in Johnson City and asked the official in charge if the message had been delivered, stating that he was very sick and anxious to have it delivered promptly. He was told in reply that it had been delivered all right. As the defendant's evidence is that the message did not reach Toecane till 2:30 p.m., this evidence was (37) competent to show that the defendant had notice of the importance of promptness before the message in fact was sent. The plaintiff was not estopped by the incorrect reply that the message had already been delivered. It would not have taken the train two and a half hours to go from Johnson City to Toecane. The telegraph ought to be speedier.
It is 2 1/2 miles from Toecane to Bakersville, and there is a telephone line over which the defendant should have transmitted this message to *Page 95 Bakersville. Indeed, according to the evidence, it could have been sent over, with proper diligence, by the mail or other means long before the plaintiff arrived at 9:30 p.m.
The defendant undertook to transmit this message over its telegraph line from Johnson City to Toecane, which was an interstate transaction. There was no damage alleged in this respect, for though the message was not received at Toecane till 2:30 p.m., this was seven hours before the plaintiff's arrival at that point on the 9:30 p.m. train. The defendant further undertook to transmit the message, on behalf of the plaintiff, over the telephone line from Toecane to Bakersville. This was purely an intrastate transaction, and as to that default there was evidence of negligence, for the natural consequences of which the defendant is liable. It is not liable because the plaintiff had measles, nor for the weather, nor for the plaintiff's ill-advised conduct under such circumstances in walking out that night from Toecane to Bakersville, when the evidence shows that he could have secured lodging in Toecane, or might have phoned out to Bakersville for a conveyance after his arrival at Toecane.
In view of the errors assigned in these respects there must be a new trial. It is proper to say, however, that we do not sustain the objection to the maintenance of the action here, because the telegram originated in another State. This has been discussed and fully settled in Penn v. Tel.Co., 159 N.C. and cases cited by Hoke, J., at pp. 309, 310, and cases cited in the concurring opinion at page 315.
Nor do we concur in the objection that the plaintiff cannot recover more than $50 because of the stipulation to that effect as to unrepeated messages on the back of the message. This Court has always held such stipulation invalid. Brown v. Tel. Co., 111 N.C. 187, citing numerous cases and the textbooks; Sherrill v. Tel. Co., 116 N.C. 655; Efird v.Tel. Co., 132 N.C. 267. Nor even if this were an interstate message — as the defendant contends — and the default was not solely at Toecane in this State, after the message was received there, would it affect this ruling. In Tel. Co. v. Milling Co., 218 U.S. 406, it is held that where the State court held that telegraph companies cannot thus limit their liability for negligent failure to deliver a telegram addressed to a person in another State, this is not an interference with interstate commerce, and will be sustained. That case will be found with full annotations, 36 L.R.A. (N.S.), 220. The default complained of (38) having occurred in this State, is governed by our law, though the message originated in Tennessee. Tel. Co. v. Brown, 234 U.S. 547.
But for the reasons given there was, in other respects,
Error. *Page 96