Russ v. Western Union Telegraph Co.

• Decision Date: 08 January 1943
• Docket Number: 670.
• Parties: RUSS v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

23 S.E.2d 681

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.

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 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".

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 the holding that where a telegraph company receives a message addressed to a person at a designated post office box, it performs its contract when it places the message in an envelope, correctly addressed, in the mail at the post office within a reasonable time. Taylor v. Western Union Tel. Co., 136 Ky. 1, 123 S.W. 311; 62 C.J. 168. But this position would seem to be discordant with the authorities in this jurisdiction. Kivett v. Western Union Tel. Co., supra; Hendricks v. Western Union Tel. Co., supra; Hoaglin v. Western Union Tel. Co., supra; Green v. Western Union Tel. Co., 136 N.C. 489, 49 S.E. 165, 67 L.R.A. 985, 1 Ann.Cas. 349, 103 Am.St.Rep. 955.

In the instant case, the direction was to deliver the message to A.P. Russ, not to a post office box, an inanimate receiver. Western Union Tel. Co. v. Scarborough, Tex.Civ.App., 44 S.W.2d 751; Western Union Tel. Co. v. Freeland, Tex.Civ.App., 12 S.W.2d 256. Nor is the case controlled by the decision in Lefler v. Western Union Tel. Co., supra. There, the message was sent in care of an agent who presumably would be in position to care for it or to see that it was delivered to the sendee. Here, it was apparent that by mailing the telegram late Sunday afternoon, in all probability, the sendee would not receive it in time to attend the funeral the following morning. Moreover, the sending of the telegram, rather than resorting to the postal system, was enough to indicate its importance, and the necessity of delivering it promptly. Gibbs v. Western Union Tel. Co., 196 N.C. 516, 146 S.E. 209. In all liklihood, if the sender had known the message was to be mailed in Lumberton, he would have dispatched a letter rather than a telegram. "A prompt delivery was of the essence of the contract". Western Union Tel. Co. v. Adams, 75 Tex. 531, 12 S.W. 857, 859, 6 L.R.A. 844, 16 Am.St.Rep. 920.

The conclusion is reached "upon consideration of all the evidence", C.S. § 567, that the case was properly submitted to the jury for a determination of the issues raised by the pleadings.

II. Limitation of Liability

In the alternative, or failing in its motion for judgment of nonsuit, the defendant presents the question of its limited liability. This was reserved upon the hearing, and by consent, ruled upon as a matter of law. The trial court denied the defendant's claim of limited liability, and entered judgment on the verdict.

The telegram in question was written on one of defendant's regular forms, which had printed upon it, inter alia, the following stipulations:

"1. All messages are accepted for transmission subject to the classifications hereinafter set forth, and to the conditions and stipulations adopted for each of the respective classifications. ***

"2. Unless otherwise indicated on its face, this is an unrepeated message and paid for as such, in consideration whereof it is agreed *** The Telegraph Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any message received for transmission at the unrepeated rate beyond the sum of Five Hundred Dollars", etc.

These provisions, stipulations and conditions had theretofore been inserted in the defendant's "Tariff N.Car.U.C. No. 1, Schedule A-1", and approved by the North Carolina Utilities Commission, September 15, 1941.

It is provided by C.S. § 1066 that the Corporation Commission (now its successor the Utilities Commission, Chap. 134, Pub.Laws 1933) "shall make reasonable and just rates and charges, in intrastate traffic, and regulate the same, of and for--*** 2. The transmission and delivery of messages by any telegraph company". It is also provided, C.S. § 1067, that "the rates or charges established by the commission shall be deemed just and reasonable, and any rate or charge *** other than those so established shall be deemed unjust and unreasonable".

It is further provided by Chap. 307, Pub.Laws 1933, that the term "rate" shall mean and include "every compensation, charge *** and classification, or any of them demanded, observed, charged or collected by any public utility, for any service *** offered by it to the public, and any rules, regulations *** affecting any such compensation *** or classification". § 1(f). And then in section 4, "every public utility...