Beal v. Western Union Telegraph Co.

BbowN, J. The plaintiff lived with his father, the sendee in the telegram, at Gulf, N. 0., but on 22 August, 1907, was residing near Lake Yiew, Moore County, N. C., working in a saw mill, where on the above date he was seriously and painfully injured, about 8 a. m:., and taken'to the station at Lake Yiew at once and carried to Sanford, reaching there about 2 p. m. The telegram in question was sent at the request of plaintiff by his friend A. B. Jenkins from Yass, one mile from Lake Yiew, and the nearest telegraph office. The telegram was written down by Taylor, the operator at Yass, at the request of Jenkins, who paid the twenty-five cents therefor. The alleged grievance and ground for mental suffering is that plaintiff failed to meet his father at Sanford on arrival. J. W. Beal, the father to whom the message was addressed, testified that if he had received the telegram in question sent from Yass he would have gone to Sanford. He would not have expected to meet his son there. This fact, coming from plaintiff’s own witness, the sendee of the telegram, will prevent a recovery of anything more than nominal damages, the price of the message. It was incumbent- upon the plaintiff to show that upon receipt of the telegram the sendee could and would come. He has proved just the contrary. Bright v. Telegraph Co., 132 N. C., 325-326; Hancock v. Telegraph Co., 137 N. C., 498; Kernodle v. Telegraph Co., 141 N. C., 436. But plaintiff endeavors to avoid this by an amendment to the complaint that the defendant company had notice that it was the purpose of plaintiff to go to Sanford, and that he desired to meet his father there, and in that view we presume the second issue was submitted. *334 If that was the purpose, then Jenkins should have definitely telegraphed the father to proceed to Sanford. But the telegram was worded and sent in accord with plaintiff's own instructions to Jenkins, as testified to by the latter, who says: “Just before I left the mill, where the accident was, he said, ‘See that my father knows this, and get him here as quick as you can.''' The plaintiff in his own testimony says that the instruction he gave Jenkins was to send a message to his father and inform him of the accident. Plaintiff does not claim in his evidence that he instructed Jenkins to wire his father to meet him anywhere. In the complaint, which is verified by the oath of the plaintiff, he avers that he procured his friend to send a telegram to' his father in words and figures like the one which is the basis of this action. It was the failure to deliver that telegram, which plaintiff alleges is the telegram his friend caused to be sent for him, that was the cause of his father’s failure to meet him. We think under the well-settled decisions of this Court the plaintiff is entitled to recover nominal damages only, viz., the cost of the message. Error.