Medlin v. Western Union Telegraph Co.

• Decision Date: 29 September 1915
• Docket Number: 106.
• Parties: MEDLIN v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

86 S.E. 366

169 N.C. 495

MEDLIN v. WESTERN UNION TELEGRAPH CO.

No. 106.

Supreme Court of North Carolina

September 29, 1915

Appeal from Superior Court, Halifax County; Ferguson, Judge.

Action by Mrs. Beccia Medlin against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

It is not error for the court to refuse requests to charge which were substantially covered by the instructions given.

Plaintiff sued for damages on account of the alleged negligent failure to deliver a telegram in the following words and figures:

To Beccia Medlin, Care Mill, Rosemary, N.C. Come home at once. Your mother is dead, Elizabeth Edwards. Rush.

[Signed] S. C. McCall."

Elizabeth Edwards, mother of plaintiff, had died in Charlotte at 8 o'clock in the morning of May 4, 1914, which was Monday and the message was sent by S. C. McCall, at the instance and request of Mrs. Mary C. Jonas, sister of plaintiff. The toll for the transmission of the telegram by wire and telephone to Rosemary was prepaid for Mrs. Jonas by McCall, who was a cousin of plaintiff and Mrs. Jonas. The operator at Charlotte told him that it would cost 25 cents for message and 20 cents for telephoning it to Rosemary Mills. He gave her, the operator, the address at Charlotte, so that the answer could either be telephoned to him or Mrs. Jonas or delivered by hand. He and Mrs. Jonas lived within the defendant's free-delivery limits. McCall remained at the Edwards residence all that day. No answer came, and no service message up to 11:45 p. m., about 15 hours after message was sent, and he then called up defendant's office and inquired about message. The operator said, "Wait a minute," and he waited, and was then told that "if the message had not been delivered it would have been sent back." The copy of the message offered in evidence had these entries: "Phone 646-L, 1013 Caldwell Street." The funeral was held at 1 o'clock p. m. May 5, 1914, and if prompt delivery of the message had been made, plaintiff could easily have reached Charlotte at midnight of May 4th and at the latest before the funeral. If Mrs. Jonas had heard from her sister in reply to her message, the funeral would have been postponed until her arrival. She heard of her mother's death the first time on Thursday, the 7th, at 3 p. m., by letter, and on Saturday saw a copy of the message by going to Weldon for it. She left on the Saturday night train, and reached Charlotte Sunday. Plaintiff testified:

"There has been a telegraph office at Roanoke Junction every since I have been in Rosemary. I have sent and received messages from this [Roanoke Junction] office. It is about one-half mile from this telegraph office at Roanoke Junction to where I live. It is about one-half mile to where I was at work on May 4, 1914. Prior to May 4, 1914, when I received messages from the Western Union Telegraph Company's office at Roanoke Junction, they were delivered to me by hand, by a young man from the office at Roanoke Junction. Prior to May 4, 1914, I regularly received mail addressed to 'Beccie Medlin.' "

She introduced the envelopes of several letters addressed to and received by her in the name of Mrs. Medlin, Mrs. Beckie Medlin, and Mrs. Rebecca Medlin, Rosemary Mills, Roanoke Rapids, N. C., or simply Roanoke Rapids, or Rosemary Manufacturing Company, Roanoke Rapids, N. C.; the Rosemary Mills being well known in that section, Weldon and its environs. She was known among the people where she lived and with whom she associated as Mrs. Anna Rebecca Medlin, by which name she was christened, and as "Becky" Medlin, Mrs. Anne Medlin, and Mrs. Rebecca Medlin. Her husband's name is Chas. W. Medlin, and they have lived in Rosemary 14 years, and are well known there.

S. M Thompson, who lives at Rosemary Mills, testified that he had known plaintiff as Mrs. Becky Medlin for four years. She lives near his home. He further stated that defendant delivered messages often at Rosemary Mills by its messenger boy from Roanoke Junction, and that he frequently directed him to the parties addressed; the defendant's office being a quarter or a half of a mile from his store in Rosemary, and the mill a little nearer to the office.

The operator at Charlotte testified that S. C. McCall told her at the time he filed the message that Mrs. Medlin "worked in the mills," and to address it care of "the mills." He asked him to make it fuller, but he said "Care of Mills" was all he could do, and this was all the information the witness could get.

The operator at Weldon, N. C., testified that he received the message on time May 4, 1914, and called up Roanoke Rapids telephone office and asked for Rosemary Mills. Some one answered, and he asked if he knew Becky Medlin, and he said "No;" she was not at the mills. He could not say whether he phoned the message to Rosemary Mills or not. He then called Patterson Mills, and they answered that they knew a Medlin, by name T. W. Medlin, and he gave them a copy of the message. He called Patterson Mills again in a half hour, and the lady said no copy of the message was there, and she thought it had been delivered. He also mailed a copy of the message to Mrs. Becky Medlin at Rosemary Mills in time to reach that place by the 12:07 o'clock p. m. train the same day, but he did not call up Rosemary and read the message to them; that was all that he did about it. Mrs. Medlin afterwards testified that she never received the message by mail, although her husband went to the post office in the evening after the time when the defendant's operator said the message should have been there.

A. C. Medlin, witness for defendant, testified that he received the message from the young lady at Patterson Mills, and inquired in the mill for the addressee, and, not being able to find any one by that name, he returned the message and told them they would probably find Mrs. Medlin at Rosemary Mills, as there were some of the Medlins who lived there, but he did not know their names. He got the telephone between 9 and 10 o'clock on Monday, the 4th day of May, 1914. In an hour or so "he talked to the Western Union himself, and told them that there were no Medlins at Patterson Mills, but there were some Medlins at Rosemary Mills," who were not related to him. On Wednesday or Thursday, the 6th or 7th of May, he was called over the long-distance telephone by some one who wanted C. W. Medlin. He sent for him to Rosemary Mills. He came, and witness told him about the message of Monday. He said that he had not received it. Patterson town is not Rosemary, but a half or a mile away. The witness, who was called by the defendant, further testified:

"I did not tell the Western Union that the telegram had been delivered. I did not tell the Western Union that I would try to find them. I told the Western Union that probably she would find them at Rosemary."

The postmaster at Rosemary testified:

That he did not recall whether or not he had received letters for Becky Medlin, but had been there only one month before May 4, 1914. "I cannot say that these envelopes were delivered to Mrs. Medlin. I do not remember every letter delivered to her. He [C. W. Medlin] has a box at Rosemary. The defendant has an office at Roanoke Junction and received telegrams there for Rosemary and delivered them over the phone. I received and delivered a letter for Mrs. C. W. Medlin."

T. W. Medlin, defendant's witness, testified that he was superintendent of Rosemary Mills and was phoned about the telegram, and answered that he did not know Becky Medlin, but gave them the names of I. D. and C. W. Medlin. Mrs. Medlin's name was on the pay roll as "Mrs. Medlon" or "Mrs. C. W. Medlin," not as Becky Medlin, but she was the only Mrs. Medlin on the roll. They did not tell him the nature of the message.

H. L. Grant, defendant's witness, testified that he is defendant's claim agent, and as such, about one week after the 4th day of May, 1914, he inquired at the post office of superintendent Mullin and a neighbor across the street if they knew Becky Medlin, and they answered, "No," but that he found her husband, C. W. Medlin.

Witnesses of defendant, in rebuttal, testified that the defendant delivered messages by hand and by phone from Roanoke Junction to Rosemary Mills, and that they knew C. W. Medlin, husband of plaintiff, and that Mrs. Medlin, his wife, was the only woman of that name in the mills on May 4, 1914. There was also evidence that no copy of the message, if ever mailed, was received by Mrs. Becky Medlin.

S. C. McCall also testified that the agent at Charlotte did not ask him for a better address.

C. O. Boyd, witness for plaintiff, testified:

"I worked in store at electrical work; am an electrician. On May 4, 1914, I was in R. E. Shell's general mercantile store at Rosemary, N.C. The Western Union called up [the store] from Weldon, and I answered the phone. She said that they had a telegram for Becky Medlin, and asked me if I knew her. I said, 'Yes,' and I asked her [the operator] if she wanted me to get Becky Medlin to the phone, and I offered to get her to the phone for them. She [operator] said, 'Wait a minute.' In five or ten minutes she called up and said she had delivered it to the Patterson Mills. I told her that she had delivered it to the wrong place. I have been knowing her (indicating the plaintiff) as Becky Medlin for 10 or 12 years. It was a lady who called me over the telephone; said she was in the Western Union Telegraph office in Weldon. It was some time before dinner."

There was evidence tending to show severe mental anguish caused by the defendant's negligence in not delivering the telegram, and damages resulting therefrom.

The defendant tendered an issue as to contributory negligence which the...