Jolley v. Western Union Telegraph Co.

170 S.E. 145, 205 N.C. 108, 1933 N.C. LEXIS 473

• Court: Supreme Court of North Carolina
• Decided: July 12, 1933
• Status: Published

Opinion

Connoe, J.

Defendant’s appeal from the judgment of the Superior Court of Cleveland County in this action was heard at the Fall Term, 1932, of this Court, and was decided on 8 February, 1933. The judgment was affirmed. See Jolley v. Telegraph Co., 204 N. C., 136, 167 S. E., 575.

On 9 March, 1933, tbe defendant filed its petition for a rehearing of its appeal. Tbe petition was allowed, and tbe appeal docketed for a rehearing on 27 May, 1933. Rule 44, Rules of Practice in tbe Supreme Court. '200 N. C., 838.

In its petition, tbe defendant contends that there was error at tbe trial in tbe Superior Court, with respect to tbe third issue involving tbe damages which plaintiff is entitled to recover of tbe defendant, and that tbis Court erroneously failed to sustain its contention in that respect, which was duly presented by its appeal from tbe judgment of tbe Superior Court. It contends that on all tbe evidence at tbe trial, tbe plaintiff was not entitled to recover of tbe defendant more than nominal damages for tbe injury which she sustained by reason of tbe negligent failure of tbe defendant to transmit and deliver tbe telegram which she bad filed with tbe defendant. Tbis contention was carefully considered at tbe bearing of defendant’s appeal, as will appear by reference to tbe opinion of tbis Court. On tbe authorities cited in the opinion, tbe defendant’s contention was not sustained. There was evidence tending to show that plaintiff was entitled to recover of tbe defendant compensatory damages. Tbis evidence was submitted to tbe jury under instructions which are in accord with well settled principles of law.

Tbe defendant’s petition for a rehearing of its appeal is dismissed on the authority of Weston v. Lumber Co., 168 N. C., 98, 83 S. E., 693. It does not appear from tbe petition that tbe question of law presented thereby was decided hastily or without due consideration; or that any material'fact or pertinent principle of law was overlooked by tbis Court. No additional authority supporting tbe contention of tbe defendant has been cited in tbe brief filed by tbe defendant on tbe rehearing of its appeal. McIntosh N. C. Practice & Procedure, p. 811. Tbe decision at tbe bearing of defendant’s appeal is in accord with tbe authorities cited in tbe opinion, and with well settled principles of law. Tbe decision will stand, and tbe judgment affirming tbe judgment of tbe Superior Court will not be disturbed.

Furthermore, it is observed that the sufficiency of plaintiff’s telegram to create an acceptance of the position to which she had been elected, and to make a contract between her and the trustees of the Manteo High School, does not seem to have been questioned at the trial of the action. All the evidence showed that she had been duly elected as a teacher in the Manteo High School for the term of one year, at a fixed salary, and that she failed to receive this salary because of the negligent breach by the defendant of its contract with her to transmit and deliver her telegram of acceptance.

Petition dismissed.