Willis v. Western Union Telegraph Co.

Stacy, J. Plaintiff brings this suit, alleging that by reason of the negligent failure of the defendant to deliver a telegram announcing the death of her father she was deprived of the opportunity of attending his funeral, and she seeks to recover damages for the mental anguish sustained by her as a resultant injury. It is conceded that plaintiff’s sister sent one Charles Mahaffey to the defendant’s office in Waynesville, N. C., on the morning of 27 November, 1922, with a telegram to be sent to plaintiff at Bryson City, N. C., in care of Captain Frye. The message was promptly transmitted and received by defendant’s agent at Bryson City, but it was not delivered until called for by plaintiff’s son on 8 December, 11 days thereafter. This evidence was sufficient to carry the case to the jury. Sherrill v. Tel. Co., 116 N. C., 655. “It is well settled that where a telegraph company receives a message for delivery and fails to deliver it with reasonable diligence, it becomes prima facie liable, and that the burden rests upon it of alleging and proving such facts as it relies upon to excuse its failure.” Douglas, J., in Hendricks v. Tel. Co., 126 N. C., 309. On the record, the defendant apparently made out a strong case in exculpation of liability, and a verdict in its favor would have been fully warranted by the evidence, but we need not consider this phase of the controversy, as it was purely a question for the jury, and they have determined it in favor of plaintiff’s claim. The plaintiff, having made out a prima facie case, was entitled to have the matter submitted to the jury. The defendant’s motion to dismiss or for judgment as of nonsuit was properly overruled. There was also objection to the admission of evidence tending to show that the defendant made no effort to notify the sender of the nondelivery of said telegram by returning service message or otherwise, as the complaint omitted to specify such failure as one of the grounds of negligence. This evidence was competent upon the general allegation of negligence, and the exception must be overruled. “If for any reason it (telegraph company) cannot deliver the message, it becomes its duty to so inform the sender, stating the reasons therefor, so that the sender may have the opportunity of supplying the deficiency, whether it be in the address or additional cost of delivery. The failure to notify the sender of such nondelivery is of itself evidence of negligence.” Douglas, J., in Cogdell v. Tel. Co., 135 N. C., 431. Defendant’s motion for a new trial upon the ground of excessive award of damages must also be overruled. Appellate courts do not *116 ordinarily interfere with the discretion of the jury in assessing the amount of damages in cases of this kind, unless it appear that the verdict must bave been the result of passion or prejudice, or that the amount awarded is clearly or grossly excessive. 37 Cyc., 1793. It being a question for the jury, and not for the court, to fix the amount, in cases of unliquidated damages, a verdict will not be set aside merely because it is large, or because the reviewing court would bave awarded less. 8 R. C. L., 673. See, also, opinion of Horton, C. J., in Union P. R. Co. v. Young, 19 Kan., 488. After a critical examination of tbe record, we bave found no error wbicb would justify us in disturbing tbe verdict and judgment, and tbis will be certified. No error.