#### J. M. GRISWOLD v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 24 September, 1913.)

Telegraphs — Reasonable Office Hours — Service Message — Nondelivery.

Where a telegram is received at its destination by an agent of a telegraph company after reasonable office hours, it is his duty either to deliver it to the addressee or to send back a service message to the sender of the message, notifying him of its nondelivery, and his failure to do so is actionable negligence, for which the company is liable for the damages proximately caused.

Appeal by defendant from Daniels, J., at the August Term, 1913, of Chatham.

This is a civil action to recover damages for mental anguish for negligent failure to deliver a telegram reading:

MeKRIT G-RISWOLD,

Bear Creele, N. C.

Father died at 12 to-day. Burial to-morrow evening, church.

(Signed) Oscar Griswold.

*174Tbe telegram was filed with tbe Postal Telegraph Company’s agent at Wendell, N. C., on Sunday afternoon, 4 February, 1912, at about 4 p. m. It was delivered by Osear Griswold, nepbew of plaintiff, and tbe agent explained to bim that it was doubtful if tbe message could be gotten through. Tbe agent sent tbe message off, closed bis office, and never went back until Monday morning. Tbe message was received at Bear Creek, N. 0., about 6 :15 p. m. of tbe same day by tbe agent of tbe defendant, and was not delivered to tbe plaintiff until tbe forenoon of Monday. Tbe agent at Bear Creek was in bis office when call was made for him, though bis Sunday hours were from 8 to 10 in the morning,' and 1:30 to 3 :30 in the afternoon, and be made no effort to deliver tbe same or send a service message until tbe next forenoon. Tbe deceased was brother of tbe plaintiff and father of tbe sender of tbe message. He died about noon on 4 February, 1912, and was buried at tbe church about 4 p. M., 5 February, 1912, several miles in tbe country from Wendell.

There was evidence tending to show that plaintiff could and would have driven to Sanford tbe night of tbe 4th, caught a midnight train on tbe Seaboard -for Raleigh, and reached tbe funeral and burial in -time.

Tbe defendant moved for judgment as in case of nonsuit at the close of the plaintiff’s evidence, and at tbe close of tbe whole evidence renewed tbe motion. Tbe motion was denied. Tbe defendant also excepted to so. much of bis Honor’s charge as related to tbe duty of tbe defendant’s agent at Bear Creek to use reasonable effort to deliver the message on Sunday evening after its receipt by him.

The exceptions taken by the defendant bear upon only one point, and that is, what duty tbe defendant owed to tbe plaintiff to make any effort to deliver tbe message to bim, after it bad received the same at Bear Creek, N. C., several hours after tbe closing of the defendant’s office at that point,- in accordance with its office hours for Sunday.

There was a verdict and judgment for tbe plaintiff, and the defendant appealed.

*175 H. A. London Son for plaintiff.

Rose & Rose and 'Hayes & Bynum for defendant.

Allen, J.

Tbe appeal presents tbe single inquiry as to tbe correctness of tbe rule tbat wben tbe telegram is received by tbe agent of tbe telegraph company, altb'ougb outside of reasonable office hours, it is bis duty to make reasonable efforts to deliver it, or if be cannot do so, be must endeavor to send a message to tbe sender, notifying him of nondelivery, and is controlled by Carter v. Telegraph Co., 141 N. C., 374; Suttle v. Telegraph Co., 148 N. C., 480; Carswell v. Telegraph Co., 154 N. C., 112, which have been affirmed at this term in Ellison v. Telegraph Co., ante, 5.

No error.