Suttle v. Western Union Telegraph Co.

Walker, J., after stating the cas.e: 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; Kernodle v. Telegraph Co., 141 N. C., 436; Carter v. Telegraph Co., 141 N. C., 374; Dowdy v. Telegraph Co., 124 N. C., 522. In this case the company, by its operator and agent, expressly agreed that the message would be delivered to Mrs. Suttle that evening, and.he was specially and fully advised of the importance of a speedy delivery to her. There could hardly be more detailed information of the nature and importance of the message or of the reason why an early delivery to the sendee was desired. *483 The company was Lilly aware of tbe fact that if the delivery of the message was delayed until the next morning the object for sending it ivould be defeated, and, too, that the sendee, Mrs. Subtle, would suffer mental anguish. The sender informed the operator that he would drive to his home that evening if the message could not be delivered at once, and thereby relieve his wife’s anxiety, as she would be sure to hear of the accident; that he expected to return home that afternoon, and his failure to do so, together with the knowledge of the accident by his wife, would be sure to cause her mental distress. The case is a plain one for the application of the rule laid down in the cases cited. Indeed, it is much stronger against the company than were the facts in any one of them. The defendant’s counsel contends that, as the information contained in the message was false, the delayed delivery was not the proximate cause of the injury, and that the meaning or import of the message did not appear on its face and was not communicated to the operator. He reasons from this that the damage to the feme plaintiff was not within the contemplation of the company and the plaintiff when they entered into the contract for the transmission of the message. We have held, it is true, that the company must be notified in some way that mental anguish will naturally and reasonably follow as a result of its negligence, and this information must be imparted to it by the contents of the message itself or by facts within its knowledge at the time, or brought to its attention at the time of receiving the message for transmission. Williams v. Telegraph Co., 136 N. C., 82; Cranford v. Telegraph Co., 138 N. C., 162; Bowers v. Telegraph Co., 135 N. C., 504. But in this case the evidence is plenary that the company was fully informed as to the naturp of the message, its meaning and import, and could easily have inferred, if it was not directly and explicitly told, what the consequence of delaying the delivery until the next morning would be. It cannot close its mind to the knowledge of facts which are *484 apparent, and thus plead its own ignorance as an excuse for its failure to deliver the message. If it carelessly disregarded the information it received, and its evident import, its fault in this respect is not to be imputed to the plaintiff, so as to bar her right to damages. The operator was told by Mr. Subtle what his purpose was in sending the message and in asking for a prompt delivery that evening. It was to avoid the very thing that has occurred, and which every reasonable man, mindful of his obligation to others, should have known would occur. The delay of the company was clearly the proximate cause of the injury. The case of Dayvis v. Telegraph-Co., 139 N. C., 19, seems to be a direct authority sustaining the ruling of the court. In that case it is said by Justice Hoke: “This message was sent to prevent anxiety in the plaintiff’s mind, and but for the defendant’s default would have fulfilled its mission.” We have carefully examined the objections to the testimony, and find no. error in the rulings of the court upon them. They seem to be fully answered by what we have said ■on the merits of the case. There is no error in the decision upon the admissions of counsel and the facts found by the court. Affirmed.