Hoaglin v. Western Union Telegraph Co.
| Decision Date | 12 March 1913 |
| Parties | HOAGLIN et al. v. WESTERN UNION TELEGRAPH CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Foushee, Judge.
Action by T. L. Hoaglin and another against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.
Where it is impossible to say upon what theory or under what part of the court's charge a verdict was based, error in any one of the instructions which may influence the jury entitles the unsuccessful party to a new trial.
These two actions were brought to recover damages for negligently failing to transmit and deliver a telegraphic message sent by the plaintiff S.D. Hoaglin, from Pineville, N. C., to his brother, the other plaintiff, who was at Granite Quarry, N.C. The two cases were consolidated by consent of the parties and tried together, as they involved substantially the same questions of fact and law. The jury returned the following verdict:
Judgment was entered thereon, and defendant appealed.
The evidence tended to show these facts: Plaintiff S.D. Hoaglin, whose mother had died about 12 o'clock m. on Saturday, June 3, 1911, sent the following message at 5:15 p. m. to his brother, T. L. Hoaglin: The message was filed with the defendant at Pineville, N. C., which is 10 miles south of Charlotte, N. C., on June 3, 1911, at 5:15 p. m. It was received at Charlotte at 5:30 p. m. the same day; the operator in the Charlotte office stating that it was on his hook when he returned to his instrument at 5:30 o'clock. There was but one continuous wire from Charlotte to Granite Quarry. He called the office at the latter place over this wire, and found it was "open," which means that he could not use it, as it was "out of commission," or broken at some place; where, he could not tell. It continued to be "out of order" until the next morning. Trains left Granite Quarry at 8:30 and 10 o'clock p. m. and at 1:30 and 6 o'clock a. m. T. L. Hoaglin stated that he could have walked to Salisbury and taken a train there, and would have done so had he received the message in time to have reached Pineville before the funeral; the distance from Granite Quarry to Salisbury being only five miles. The message was sent to R. E. Mitchell, a train dispatcher at Salisbury, over the wires for the purpose of having it sent by the conductor of the train at 9:50 a. m., which was Sunday. It was delivered by the conductor to T. L. Hoaglin at Granite Quarry at 10:30 the same morning, but too late for him to attend the funeral, which was then being held. When W. H. Crum, the lineman who was at or near Thomasville during the afternoon of Saturday, June 3, 1911, returned to Salisbury, about dusk, on No. 35, he was told by Mitchell of the break in the wire to Granite Quarry, but as it was dark he did not go to the place of the break that night, although he had a railroad velocipede, but waited until next morning, when he went on his velocipede in search of the break in the wire, and found it about 4 1/2 miles from Salisbury and in sight of Granite Quarry--that is, about one-half mile from that place. A heavy electrical and wind storm had passed over that section about 4 o'clock p. m. on Saturday, June 3d, and it had blown a tree down, which fell across the wire. Crum pulled the wire from under the tree and spliced and replaced it on the pole. This was about 10 o'clock Sunday morning. There was another lineman at Salisbury; but it does not appear why he was not called upon to repair the broken wire. There was a telephone line connecting Pineville with Granite Quarry, and it appeared that neither the Charlotte nor the Salisbury operator notified the sender, by a service message, that his telegram could not be delivered. S. G. Hoaglin testified that he could have used the telephone had he been notified by the defendant of the failure to deliver his message.
The defendant requested the court to give the following instructions, which were modified, as will appear, and defendant excepted to the modification:
"(1) If the jury find from the evidence, and by the greater weight thereof, that on the 3d day of June, 1911, at about 4:25 o'clock p. m., the wire of the defendant between Salisbury and Granite Quarry was broken or disconnected by a tree falling across it on account of a wind or electric storm, and that the said interruption continued until after 10 o'clock of the morning of June 4, 1911, and that the only wire reaching from Charlotte to Granite Quarry available to the use of the defendant was the said wire, which was broken or interfered with by the said electric storm, and that the said interference or breaking of the said wire by the said storm was the cause of the defendant not delivering the message referred to in the complaint in this action, then the jury are instructed to answer the first issue, 'No."'
The court refused to give the foregoing instruction, as prayed by the defendant, but added to the same the following: "Provided you find that the defendant could not, by the exercise of reasonable care and due diligence, have transmitted and delivered the message to T. L. Hoaglin, notwithstanding the storm."
"(2) If the jury find from the greater weight of the evidence that a tree fell across and broke the defendant's wires about 4:25 p. m. on June 3d by reason of a storm, and that the defendant, with due diligence, removed the tree and reconnected the wires, and that the defendant's delay in delivering the message was caused by said tree being blown on the wires by a storm, the jury are instructed to answer the first issue, 'No."'
The court refused to give the foregoing prayer, but added thereto the following: "Provided you find that the defendant could not, by the exercise of reasonable care and due diligence, have transmitted and delivered the message to T. L. Hoaglin, notwithstanding said storm breaking its said line."
The court, among other instructions, charged the jury as follows: "If you find from the evidence in this case that the defendant could not, on account of its wire between Salisbury and Granite Quarry being down, deliver the message to the sendee, T. L. Hoaglin, then it was the duty of the defendant, the telegraph company, to use reasonable diligence to notify the sender, S.D. Hoaglin; and, if it failed to do so, then the defendant was negligent, and you will answer the first issue, 'Yes."' Defendant excepted to this instruction, and now assigns it as error.
Tillett & Guthrie, of Charlotte, for appellant.
Stewart & McRae, of Charlotte, for appellees.
WALKER, J. (after stating the facts as above).
There was error in the last instruction given by the court, but not in telling the jury that, when the defendant discovered it could not send the message over its wire from Charlotte, it was its duty to notify the sender at Pineville of the fact, for that is correct. Hendricks v. Telegraph Co., 126 N.C. 304, 35 S.E. 543, 78 Am. St. Rep. 658; Cogdell v. Telegraph Co., 135 N.C. 431, 47 S.E. 490; Hood v. Telegraph Co., 135 N.C. 622, 47 S.E. 607. The defendant's failure to notify the sender of its inability to deliver the message was evidence of negligence. Hood v. Telegraph Co., supra; Hendricks v. Telegraph Co., supra; Cogdell v. Telegraph Co., 135 N.C. 431, 47 S.E. 490; Woods v. Telegraph Co., 148 N.C. 1, 61 S.E. 653, 128 Am. St. Rep. 581.
It having been shown that the message had not been delivered, a prima facie case of negligence was made out, as was decided in the cases we have just cited. The court said in Hendricks v. Telegraph Co., supra: "It is well settled that, where a telegraph company receives a message for delivery and fails to deliver it with reasonable diligence, it becomes prima facie liable, and that the burden rests upon it of alleging and proving such facts as it relies upon to excuse its failure." This very language was repeated in Cogdell v. Telegraph Co., supra. See, also, Landie v. Telegraph Co., 126 N.C. 431, 35 S.E. 810, 78 Am. St. Rep. 668; Hunter v. Telegraph Co., 130 N.C. 602, 41 S.E. 796; Rosser v. Telegraph Co., 130 N.C. 251, 41 S.E. 378. This was not controverted, as we understand, by the defendant, and it undertook to explain its apparent gross neglect of duty.
Whether it succeeded in doing so was for the jury; and, so far as the duty resting upon it to repair the break in its wire from Charlotte to Granite Quarry is concerned, the charge of the...
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