23 S.E.2d 681 (N.C. 1943), 670, Russ v. Western Union Telegraph Co.

Docket Nº:670.
Citation:23 S.E.2d 681, 222 N.C. 504
Party Name:RUSS v. WESTERN UNION TELEGRAPH CO.
Case Date:January 08, 1943
Court:Supreme Court of North Carolina
 
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Page 681

23 S.E.2d 681 (N.C. 1943)

222 N.C. 504

RUSS

v.

WESTERN UNION TELEGRAPH CO.

No. 670.

Supreme Court of North Carolina

January 8, 1943

BARNHILL, J., dissenting; SEAWELL, J., dissenting in part.

Page 682

[222 N.C. 505] Civil action to recover damages for alleged negligent failure to deliver a prepaid, unrepeated, intrastate telegram, sent from Elizabethtown, N.C., in words and figures as follows, to wit:

"February 1, 1942

"Mr. A.P. Russ

"P.O. Box 402

"Lumberton, N.C.

"Papa's dead, Burying Eleven Monday.

J.A. Russ."

This message was filed with the defendant's agency in Elizabethtown on Sunday morning for transmission by telephone to its Lumberton office when it opened at 5 o'clock that afternoon. It was so transmitted. The operator sent it out by a messenger boy who was going into the Negro section, across the river, to deliver two telegrams to colored people. The boy asked at two filling stations if they knew Mr. Russ. He soon returned the message to the telegraph office. The operator called the post office and was advised by the clerk that Mr. Russ had a postoffice box, but the clerk did not know his home address. The husband of the operator was in the telegraph office when the message was received. He advised his wife that he did not know Mr. Russ. At 6:30 p.m. a stamp was placed on the telegram and it was dropped in the mail, and the office was closed.

The plaintiff never received the telegram. He is a white man, 67 years of age, and lived about five blocks from the telegraph office on one of the principal streets of the town. He had been a resident of Lumberton five or six years. He is a member of the Episcopal Church, votes in Lumberton and has a son who attends the Lumberton schools. He was known to the Chief of Police and to the Chief of the Fire Department, both of whom were on duty at their headquarters on that day. The Fire Department is within two blocks of the telegraph office.

The plaintiff did not learn of his brother's death until the following Tuesday, the day after the funeral. He testified to substantial damages.

The jury found that the defendant had negligently failed to deliver the message to the plaintiff, and assessed his damages at $750.

From judgment on the verdict, the defendant appeals, assigning errors.

L.J. Britt and McLean & Stacy, all of Lumberton, for plaintiff-appellee.

Francis R. Stark, of New York City, Varser, McIntyre & Henry, of Lumberton, and Junius G. Adams, of Asheville, for defendant-appellant.

STACY, Chief Justice.

The first question for decision is whether the defendant's demurrer to the evidence or motion for judgment of nonsuit should [222 N.C. 506] have been sustained. The trial court answered in the negative, and we cannot say there was error in the ruling.

I. Mental Anguish as Basis of Recovery

The law is well settled in this jurisdiction that, in certain cases, substantial damages may be recovered for mental anguish proximately resulting from the wrongful or negligent failure of a telegraph company to transmit correctly and deliver promptly a telegraphic message, independently of any bodily or pecuniary injury. Penn v. Western Union Tel. Co., 159 N.C. 306, 75 S.E. 16, 41 L.R.A.,N.S., 223; Young v. Western Union Tel. Co., 107 N.C. 370, 11 S.E. 1044, 9 L.R.A. 669, 22 Am.St.Rep. 883; 26 R.C.L. 606. Here, the sendee or addressee of the message brings the action, and alleges negligence in its delivery with resultant mental anguish. He is permitted to maintain the suit under our decisions. Penn v. Western Union Tel. Co., supra.

The plaintiff made out a prima facie case when he showed acceptance of the message by the telegraph company for delivery and failure to deliver it with reasonable diligence. Hoaglin v. Western Union Tel. Co., 161 N.C. 390, 77 S.E. 417; Medlin v. Western Union Tel. Co., 169 N.C. 495, 86 S.E. 366. The duty of explanation then shifted to the defendant, if it did not care to risk the chance of an adverse verdict. Hendricks v. Western Union Tel. Co., 126 N.C. 304, 35 S.E. 543, 78 Am.St.Rep. 658; McDaniel v. Atlantic Coast Line R. Co., 190 N.C. 474, 130 S.E. 208.

"Proof or admission that the company received a message for transmission and failed to deliver it to the sendee within a reasonable time raises a prima facie case of negligence, and imposes upon the defendand the burden of alleging and proving such facts as it may rely on in excuse".

Page 683

Cogdell v. Western Union Tel. Co., 135 N.C. 431, 47 S.E. 490, 491.

Whether the defendant had exercised due diligence in the instant case was for the jury. Medlin v. Western Union Tel. Co., supra. The telegram on its face showed that it was a death message. It was received in Lumberton at 5 o'clock on Sunday afternoon. The purpose of the message was to inform the sendee not only of his brother's death, but also of the hour of the funeral, "Eleven Monday". We cannot say as a matter of law that mailing the telegram was a sufficient compliance with the defendant's duty under the circumstances disclosed by the record. Kivett v. Western Union Tel. Co., 156 N.C. 296, 72 S.E. 388; Hendricks v. Western Union Tel. Co., supra; Western Union Tel. Co. v. Broesche, 72 Tex. 654, 10 S.W. 734, 13 Am.St.Rep. 843.

It is true, in Lefler v. Western Union Tel. Co., 131 N.C. 355, 42 S.E. 819, 59 L.R.A. 477, it was said that where a telegram is addressed to a person in care of a corporation, in that case "So. Railway Co.", delivery to an agent of the corporation would suffice to discharge the duty of the telegraph company. And there is authority for...

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