Cogdell Et Ux v. Western Union Tel. Co

• Decision Date: 17 May 1904
• Citation: 47 S.E. 490,135 N.C. 431
• Court: North Carolina Supreme Court
• Parties: COGDELL et ux. v. WESTERN UNION TELEGRAPH CO.

47 S.E. 490

135 N.C. 431

COGDELL et ux.

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina.

May 17, 1904.

TELEGRAPHS—STATUS OF COMPANY—OBLIGATIONS AS COMMON CARRIER—FAILURE TO DELIVER MESSAGE—NEGLIGENCE—INABILITY TO FIND SENDEE—NOTIFICATION TO SENDEE— PRESUMPTIONS—DEFENSES—MISSPELLING OF SENDEE'S NAME—DUTY TO MAKE INQUIRY— IDEM SONANS—QUESTION FOB JURY—CONTBIBUTOEY NEGLIGENCE—APPLICATION OF DOCTRINE—APPEAL—-HARMLESS ERROR.

1. A telegraph company is in the nature of a common carrier, and, subject to reasonable regulations, is required to receive and promptly transmit and deliver all messages tendered in good faith.

2. While a telegraph company may require prepayment, yet, if it accepts a message without such requirement, it is held to the same degree of care and diligence as if the proper charges had been prepaid.

3. If, for any reason, a telegraph company cannot deliver a message, it is its duty to so inform the sender, stating the reason therefor, so that the sender may supply the deficiency, whether it be in the address or additional cost of delivery; and the failure to so notify the Bender of nondelivery is of itself evidence of negligence.

4. Proof, or admission, that a telegraph company received a message for transmission, and failed to deliver it to the sendee within a reasonable time, makes a prima facie case of neg ligence, and imposes on the company the burden of alleging and proving such facts as it may rely on in excuse, so that the plaintiff need not affirmatively prove the negligence; i. e., that the company might have found the sendee by proper diligence.

5. Where a fact admitted or proved raises a legal presumption of negligence which is not rebutted, any error in the admission of evidence tending to prove negligence is harmless.

6. A mistake in the spelling of the name of the sendee of a telegram does not relieve the telegraph company from the burden of showing that it could not have delivered the message with the exercise of reasonable diligence; but, if it could not have so delivered it on account of the misspelling, it devolved upon it to set up that fact in defense.

7. In order to impose on a telegraph company the duty of finding the sendee of a telegram, whose name is misspelled, it is not necessary that the similarity between the name as given and the correct name be sufficient to absolutely fix the identity of the sendee, but it must be such as to enable the company's employes at the terminal office to find the sendee with reasonable search and inquiry.

8. Where the name of the sendee of a telegram was written "Codgell, " instead of "Cog-dell, " as it should have been, the question whether the similarity in the names was such as to suggest to the company's employes at the terminal office the identity of the sendee was properly submitted to the jury.

9. In an action against a telegraph company for damages for failure to properly deliver a message, a defense on the ground that the name of the sendee was misspelled by the sender does not raise the issue of contributory negligence, for the sender's negligence is antecedent to, and not concurrent with, the negligence of the telegraph company in failing to make proper inquiry as to the identity of the sendee; or, if there is no such similarity between the name as given by the sender and the correct name of the sendee as to enable the company to identify the sendee by the exercise of reasonable diligence, there is no negligence on the part of the company, and consequently no room for the application of the doctrine of contributory negligence.

Appeal from Superior Court, Mecklenburg County; Neal, Judge.

Action by C. M. Cogdell and wife against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Jones & Tillett and P. H. Busbee & Son, for appellant.

Maxwell & Keerans, for appellee.

DOUGLAS, J. This is an action brought by the feme plaintiff to recover damages for mental anguish alleged to have been suffered by her on account of her failure to attend her father's funeral, which she would have attended but for the negligence of the defendant in failing to deliver a telegram informing her of her father's death. The telegram was as follows: "Mount Olive, N. C, Nov. 3, 1902. Mrs. Frank Codgell, Charlotte, N. C. Your father died suddenly this morning. W. F. Martin." It is admitted in the complaint that the name of the sendee in the message was misspelled "Codgell, " instead of "Cogdell, " as it should have been. The mistake was caused by transposing the two letters "g" and "d."

The assignments of error include 39 ex-ceptions. Thirty-two of these, referring to the admissibility of evidence, become practically immaterial in the view we take of the case. The exceptions to the refusal of prayers and to the instructions as given, aside from the usual defensive prayers for nonsuit and direction of the verdict, are substantially included, in principle at least, in the following prayer: "That the defendant company, having received a telegram for transmission addressed to Mrs. Frank Codgell, was under no obligations to find, or attempt to find, the feme plaintiff and deliver the message to her, and the jury are therefore instructed to answer the first issue 'No.'" The record states that the defendant introduced no testimony.

In discussing the points involved in this case we will not attempt to follow the order of the exceptions, but will state the general principles as they suggest themselves. It is well settled that a telegraph company is in the nature of a common carrier, and, subject to reasonable regulations, is required to receive and promptly transmit and deliver all messages tendered in good faith. It may require prepayment, but, if it accepts a message without such requirement, it is held to the same degree of care and diligence as if the proper charges had been prepaid. If for any reason it cannot deliver the message, it becomes its duty to so inform the sender, stating the reason therefor, so that the sender may have the opportunity of supplying the deficiency, whether it be in the address or additional cost of delivery. The failure to notify the sender of such nondelivery is of itself evidence of negligence. 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 defendant the burden of alleging and proving such facts as it may rely on in excuse. In the case at bar It clearly appears that a message was received by the defendant, which was intended for the plaintiff, although her name was misspelled by the transposition of two letters. The defendant did not prove, or even allege, any effort whatever to deliver the message. There is no evidence that it was sent to Charlotte, nor was any notice given to the sender of its nondelivery until eight or ten days after it was received for transmission. Apparently not even then would such notice have been given had not the sender called at the office and inquired what had become of the message. We think the defendant must lie under the burden which it made no attempt to lift or shift. Under these circumstances the plaintiff was not required to prove affirmatively the negligence of the defendant, or, what is equivalent thereto, that the defendant might have found the sendee by proper diligence. It follows that whatever error there may have been in the admission of evidence tending to prove that fact was immaterial and harmless In view of the legal presumption to the same effect If any evidence had been introduced by the defendant to rebut the presumption so as to raise a question as to the relative weight of the evidence, the case would be different.

The above principles are too well settled by the decisions of this court to require any citations from other jurisdictions. The presumption of negligence from the acceptance and nondelivery of a telegram is held in the following cases: Sherrill v. Telegraph Co., 110 N. C. 655, 21...