{
  "id": 8628644,
  "name": "J. R. NEWBERN v. WESTERN UNION TELEGRAPH COMPANY",
  "name_abbreviation": "Newbern v. Western Union Telegraph Co.",
  "decision_date": "1928-02-29",
  "docket_number": "",
  "first_page": "258",
  "last_page": "261",
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    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T20:22:12.241767+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "J. R. NEWBERN v. WESTERN UNION TELEGRAPH COMPANY."
    ],
    "opinions": [
      {
        "text": "ClaRicsoN, J.\nWe think tbe court below was in error in sustaining defendant\u2019s motion for judgment as in case of nonsuit, under 0. S., 567. On a motion to nonsuit, tbe evidence is to be taken in tbe light most favorable to plaintiff, and be is entitled to tbe benefit of every reasonable intendment upon tbe evidence, and every reasonable inference to be drawn therefrom.\nWe do not repeat or discuss tbe evidence, as tbe case goes back to tbe court below to be tried on tbe issues arising on tbe pleadings.\nWe think the notice given by plaintiff to defendant, in letter of 2 September, 1924, fully ample under the terms of the contract. The Western Union Telegraph Company blank has the following: \u201cSend the following message, subject to the terms on the back hereof, which are hereby agreed to.\u201d (Space for telegram.) And on back of telegram: \u201c6. The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.\u201d This stipulation has been held reasonable and valid. See Waters v. Tel. Co., 194 N. C., at p. 196, and authorities cited.\nMr. Justice Holmes, in Western Union Tel. Co. v. Czizek, 264 U. S., at p. 285, says: \u201cBut here the plaintiff called on Hackett, the general manager at Boise, about 14 February, 1918, as soon as he knew the facts. Directly after he received a letter from Hackett, regretting the occurrence, and enclosing the amount paid by the plaintiff as toll. Three days later the plaintiffs returned the check by letter, saying, \u2018An acceptance of this check on my part might be construed as a settlement of this matter/ so that defendant then had written notice that a claim was made. There was further communication, and finally, on 18 June, the plaintiff made a formal written demand. We should be unwilling to decide that the action was barred by this clause.\u201d\nIn Bennett v. Tel. Co., 168 N. C., at p. 498-9, it is said: \u201cThe object of the sixty days notice, as stated in Sherrill v. Tel. Co., supra (109 N. C., 527), is to give the telegraph company notice within sixty days, before its records may be sent off or the memory of its agents becomes indistinct. This letter was sufficient to recall the matter to the attention of the agent at Hamlet, and was mailed within sixty days. Lytle v. Tel. Co., 165 N. C., 504. Such mailing raised the \u2018presumption that the letter was received, and therefore was duly served.\u2019 Cogdell v. R. R., 132 N. C., 855, citing Bragaw v. Supreme Lodge, 124 N. C., 154.\u201d\nIn Bryan v. Tel. Co., 133 N. C., at p. 607, it is held: \u201cThe third ground that the claim for damages was not presented in sixty days is answered by the fact that the summons was issued and served in sixty days. Sherrill v. Tel. Co., 109 N. C., 527, at p. 532, where it is held, \u2018the general rule that the commencement of an action is equivalent to a demand applies to cases of this kind.\u2019 Thompson on Elec., sec. 256. . . . The service of the summons puts the defendant on inquiry fully as much as filing the complaint.\u201d Mason v. Tel. Co., 169 N. C., p. 229.\nFor the reasons given the judgment of the court below is\nReversed.",
        "type": "majority",
        "author": "ClaRicsoN, J."
      }
    ],
    "attorneys": [
      "Aydlett & Simpson for plaintiff.",
      "Thompson & Wilson for defendant."
    ],
    "corrections": "",
    "head_matter": "J. R. NEWBERN v. WESTERN UNION TELEGRAPH COMPANY.\n(Filed 29 February, 1928.)\n1. Evidence \u2014 On Motion to Nonsuit \u2014 Demurrer to the Evidence.\nUpon defendant\u2019s motion as of nonsuit upon the evidence, the evidence is to he taken in the light most favorable to the plaintiff, giving him the benefit of every reasonable intendment or inference to be drawn therefrom. O. S., 567.\n2. Telegraphs \u2014 Contract with Sender \u2014 Claim to be Filed in Sixty Days.\nThe printed stipulation on the back of a telegraph blank upon which a message is written, referred to in the printing on the face thereof, that the telegraph, company would not be liable for damages or statutory penalties when the claim therefor is not presented in writing within sixty days after the message is filed with the company for transmission, is reasonable and valid.\n3. Same.\nWhere a telegraph company receives for transmission a telegram ordering a carload of potatoes, and within the sixty days stipulated in the telegraph blank, the company is notified by a letter from the sender of its mistake in its transmission as to the destination of the shipment, and that damages had resulted therefrom: Held, sufficient to sustain the action of the sender to recover damages against the company for its negligence.\n4. Evidence \u2014 Presumptions\u2014Receipt of Mail.\nWhere a notice has been written and deposited in the United States mail, giving a telegraph company notice of a mistake made by it in the transmission of a message it had accepted for that purpose, it is sufficient evidence that it had been duly received by the company.\nAppeal by plaintiff from Moore, Special Judge, at October Special Term, 1927, of PasquotaNK.\nReversed.\nThis is an action for actionable negligence brought by plaintiff against defendant. The defendant denied negligence and set up (1) the plea of contributory negligence; (2) That the plaintiff failed to present bis claim for damages in writing within 60 days after the alleged message was filed for transmission.\nThe testimony of plaintiff was to the effect that after an exchange of several previous messages, the West Virginia Brokerage Company, on 21 August, 1924, filed with defendant at Huntington, W. Va., a message addressed to plaintiff at Elizabeth City, N. C., reading as follows: \u201cReplying ship Keister Milling Company Huntington hundred^ seventy-five bbl. car branded sweets eight quarter delivered.\u201d Said message when delivered by the defendant to plaintiff had a mistake \u2014 the word Wilmington was substituted for Huntington. When plaintiff learned of the error in the\u2019message he wired the West Virginia Brokerage Company, on 22 August, \u201cConfirm Keister car sweets advise quick correct shipping instructions.\u201d The same day he got a reply to the wire: \u201cShip car Keister Milling Company 0. and O. delivery Norfolk Western Norfolk splitting several people.\u201d That he didn\u2019t ship until he sent the second wire asking for specific instructions. After receiving the telegram reading Wilmington, he had the Western Union to read the telegram to see if Wilmington w\u00e1s right, because the next telegram read \u201csplitting several people.\u201d After he had wired and got specific instructions and shipped potatoes, he did not find out that anything was wrong about the shipment until 2\u20195 August, 1924. ... \u201cI didn\u2019t ship by 0. & 0. delivery; I didn\u2019t route it 0. & 0. 0. & 0. is Chesapeake & Ohio. I disregarded 0. & 0. delivery for the simple reason I shipped the ear order notify. I didn\u2019t give it any route. I wired the West Virginia Brokerage Company on 22 August: \u2018Shipped N. & S. 21312, Routed B. & 0., delivery Wilmington, Ohio.\u2019 I wrote tbat wire. I didn\u2019t route tbe car B. & O. delivery. Tbat was tbe routing tbe agent advised me tbe car would take. And I wired tbe) West Virginia Brokerage Company tbat tbe car was being routed tbat way, I disregarded tbeir instructions to sbip it C. & 0. delivery. I didn\u2019t send it C. & 0., notwithstanding I bad tbeir telegram telling me to sbip it C. & O. I gave tbe agent instructions to sbip it C. & 0., and be said be could not do it. He gave it B. & 0. routing.\u201d\nOn 2 September, 1924, plaintiff wrote to defendant\u2019s agent at Elizabeth City tbe following letter: \u201cThis is to advise tbat we are having disposition made of sweet potatoes in car NS-21312, consigned to Wilmington, Ohio, through error of Western Union, whereas tbe car should have gone to Huntington, W. Va. All losses sustained and all additional expenses we have bad or will have in connection with closing this car we shall expect tbe Western Union to reimburse us. It is with regret tbat through error of tbe Western Union tbat tbe wrong shipping instructions were made, as tbe parties to whom this car was sold was put out by not getting tbeir potatoes, and it has caused us much expense and trouble in disposing of this car. We shall advise you as early as we have returns on this car, and shall expect you to let us have settlement. We are sorry indeed, but we cannot be expected to sustain this loss through an error of your company.\u201d\nAgain, a letter' of 25 October, 1924, calling attention to tbe error of defendant, enclosing bill and showing loss of $652.27. Then again on 31 October, 1924, repeating and winding up tbe letter: \u201cTrust this information will be what you wish, and tbat you will insist tbat prompt settlement be made so tbat we may make settlement with tbe grower of these potatoes.\u201d\nAt tbe close of plaintiff\u2019s evidence defendant made a motion for judgment as in case of nonsuit, which was sustained by tbe court below. Plaintiff excepted, assigned error and appealed to tbe Supreme Court.\nAydlett & Simpson for plaintiff.\nThompson & Wilson for defendant."
  },
  "file_name": "0258-01",
  "first_page_order": 330,
  "last_page_order": 333
}