Elltson v. Western Union Tel. Co

• Citation: 163 N. C. 5,79 S.E. 277
• Court: United States State Supreme Court of North Carolina
• Decision Date: 10 September 1913
• Parties: ELLTSON. v. WESTERN UNION TELEGRAPH CO.

79 S.E. 277

(163 N. C. 5)

ELLTSON.

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina.

Sept. 10, 1913.

Appeal from Superior Court, Washington County; B. F. Long, Judge.

Action by Aline Ellison against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This and the case of Harrison v. Telegraph Co., 79 S. E. 281, involving practically the same questions and arising out of the same transaction, were consolidated in this court and argued together.

There was evidence for the plaintiffs. Aline Ellison and Annie Harrison, that they were adopted by Sue Wright as her daughters and reared and educated by her; Annie being her niece and Aline her husband's niece. They lived in her home from a very tender age, three and seven years, respec-tively, and were treated as her children and lived there as sisters. In January, 1911, Sue Wright became very ill, and Aline went from her home in Jamesville to her foster mother's home in Plymouth to see her. As her condition was improved on January 25, 1911, Aline returned to her home in the afternoon of that day and arrived at Plymouth about 4:30 o'clock the same day; the two places being only 15 miles apart. Shortly after she left, Sue Wright grew worse and died about 5 o'clock. A little after 5 o'clock p. m. Annie Harrison asked Bettie Ellis, wife of Henry Ellis, to go to the defendant's office and send this message to Aline Ellison: "Sue Wright is dead. Come on the night train." Bettie Ellis asked her husband, who was employed at the railroad station, to give the message to the operator, who was also agent of the railroad company, and he did so at once. This was about 5:30 p. m. The message was not sent that evening and not until after 10 o'clock the next morning and was not received by Aline Ellison until 12 o'clock, at the time she heard the mill whistle blow for that hour. She left by the first train but did not reach Plymouth until 4:30 p. m. If the message had been sent when it was received by the operator, on that afternoon, she would have received it in time to have taken the 7 o'clock p. m. train and would have reached Plymouth at 7:30 p. m. on January 25th, and she would have taken that train if she had received the message in time. There was an understanding and arrangement between Annie and Aline that the former would wire the latter if their foster mother's condition grew worse, and that Aline would come to Plymouth, but there was no evidence that this was known to the defendant's operator, except such notice of it as he could derive from the message. The agent knew that Annie Harrison lived with Sue Wright.

The agent, J. A. Griffin, testified that he accepted the message after office hours and promised to send it as a matter of accommodation and if he found that it could be sent that evening, but that the office at Plymouth closed at 0 o'clock p. m. and he might not be able to get an answer from the operator, though he would try to do so. He tried the wires and the telephone connecting the two places but failed to get any response. The next morning he told Henry Ellis that he would destroy that message and send a new one, which he did, it being the one received by Aline Ellison at 12 o'clock the next day. He was both agent of the railroad company and operator of the telegraph company, but as operator he was not required to be in his office after 6 o'clock p. m., though as agent of the railroad company he was required to be in his office until 7:30 o'clock p. m., when the train arrived from Plymouth, and the agent of the railroad company at Plymouth, who was also telegraph operator, was required to be in his office un til 7 o'clock p. m., when the train from Rocky Mount leaves Plymouth for Jamesville. J. A. Griffin denied that he knew where Annie Harrison lived. This witness was not corroborated by Henry Ellis, though the latter did not positively contradict him, but merely stated that he did not recollect that the transaction was as related by the operator. The railroad and telegraph offices were the same. The defendant read in evidence the seventh section of the Harrison complaint, in which it is alleged that the plaintiff sent the message after 4 o'clock p. m. on January 25th and told the defendant's agent of the facts and agreement between her and Aline Ellison and requested the agent to send the message to her at Jamesville, notifying her of the death of Sue Wright, and that she paid the toll for the same, but this is not important, as the case is viewed by the court.

It is stated in the record "that the court charged the jury fully on the law of the case, and no exception was taken to the charge. At defendant's request, the court gave the following instructions:

"(1) The plaintiff is not entitled to recover any damages because of any delay in getting the coffin, or casket, from Jamesville, and the jury will not consider this in making up their verdict on the second issue.

"(2) The plaintiff cannot recover any damages because of the offensive condition of the corpse at or before the burial, and the jury will not consider this in making up their verdict as to damages.

"(3) There is no evidence that the defendant had any notice of any arrangement between plaintiffs that Aline Ellison should furnish coffin, and no damages can be given by the jury on account of that.

"(4) Henry Ellis, in having the message prepared and offered for transmission, if you find he did so, was the agent of the plaintiff and not of the defendant, and defendant cannot be held responsible because of any damage or hurt suffered by his negligence, if you find he was negligent.

"(5) The jury can give no damages by way of punishment to the defendant."

The defendant, also in writing, further requested the court to charge the jury as follows:

"(6) Upon all the evidence introduced, the jury should answer the issues in favor of defendant."

This instruction the court declined to give, and defendant excepted. There was a verdict for the plaintiff in each case, and, judgment having been entered thereon, defendant appealed.

Pruden & Pruden, of Edenton, and S. B. Shepherd, of Raleigh, for appellant.

Winston & Matthews, of Windsor, for appellee.

WALKER, J. (after stating the facts as above). [1] It appears that there was sufficient evidence of negligence on the part ofthe defendant in failing to send the message on the afternoon of January 25th. It was shown that both agents were in their offices until 7 o'clock p. m.; and, while the operator at Plymouth testified that he called the office at Jamesville and failed to get any response, this was not conclusive upon the jury, and they could find upon all the facts and circumstances that no effort was made to send the message. It is a suspicious circumstance, which they might consider, that the agent at Jamesville was not called by the defendant to corroborate the Plymouth operator.

The burden was upon the defendant to account for the delay, after the receipt of the message for transmission was shown. It was solely within its power to do so, and there must be a presumption of negligence raised by so long a delay, in the absence of any sufficient or satisfactory explanation. Hoag-lin v. Telegraph Co., 161 N. C. 390, 77 S. E. 417. It was held in Sherrill v. Telegraph Co., 116 N. C. 655, 21 S. E. 429, that when the plaintiff shows the delivery of a message to the telegraph company, "with the charges prepaid (and it would have been the same if the defendant had accepted the message with charges to be collected), and the failure to deliver the message, a prima facie case was made out and the burden rested on the defendant to show matter to excuse its failure"—citing Thompson on Electricity, § 274, and cases; Bartlett v. Telegraph Co., 62 Me. 209, 16 Am. Rep. 447; Pearsall v. Telegraph Co., 124 N. Y. 256, 26 N. E. 534, 21 Am. St. Rep. 662. It is not necessary that we should discuss the evidence, as there was plainly enough to satisfy the jury, if they accepted it as true, that the defendant had negligently delayed to send the message, and that this prevented the plaintiff, Aline Ellison, from leaving on the earlier train.

The court properly confined the assessment of damages to mental anguish suffered after the message was actually delivered to her. There was affirmative evidence that mental anguish had been caused to both plaintiffs by the negligence of the defendant.

In Harrison v. Telegraph Company, 143 N. C. 147, 55 S. E. 435, 10 Ann. Cas. 476, we stated the rule to be that there can be no recovery of damages for mental suffering in such cases, unless it is shown "that the defendant could reasonably have foreseen from the face of the message...