Gibbs v. Western Union Telegraph Co.

• Decision Date: 16 January 1929
• Docket Number: 583.
• Parties: GIBBS v. WESTERN UNION TEL. CO.
• Court: North Carolina Supreme Court

146 S.E. 209

196 N.C. 516

GIBBS v. WESTERN UNION TEL. CO.

No. 583.

Supreme Court of North Carolina

January 16, 1929

Appeal from Superior Court, Haywood County; Roy L. Deal, Judge.

Action by Maggie Gibbs against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. No error.

Evidence held sufficient to make case for jury on question of proximate cause, in action for failure to deliver death message to mother of deceased.

This was an action for actionable negligence, brought by plaintiff against defendant for not delivering a death message.

The plaintiff alleges:

"That the plaintiff is the mother of several children; and that on and prior to the grievance hereinafter mentioned her son, Lawrence Gibbs, had resided in the City of Asheville N. C., for some time; and that on Monday morning, December the 27th, 1926, about the hour of two o'clock A. M the plaintiff's said son, Lawrence Gibbs, was mortally wounded, having been shot with a pistol just below his heart; and that thereafter at 7:33 A. M., on the same date, and as soon as the defendant Company opened its Asheville office so maintained by it for the purpose of receiving and transmitting messages, the plaintiff's daughter-in-law, Mattie Gibbs, filed with the defendant Company, and paid the usual and customary charges demanded by the Company therefor, a message and telegram to the plaintiff in words and figures as follows, to wit:

"'Asheville, N. C., 7:33 A., Dec. 27, 1926. "'Maggie Gibbs, Waynesville, N. Car.

"'Come at once Lawrence is seriously shot and cant live.

"'Maggie Gibbs 801A.'

"That the said message was transmitted from the Asheville office by the defendant company to the Waynesville office of the defendant company, and received by the Waynesville office at one minute after 8 o'clock on the said 27th day of December, 1926."

In answer the defendant says: "That defendant has no knowledge or information sufficient to form a belief as to the allegations contained in said complaint, except so much thereof as alleges that there was filed in its office in the city of Asheville, N. C., to be transmitted to the plaintiff, at Waynesville, N. C., a telegraphic message in words and figures substantially the same as that set out in said paragraph."

Mattie Gibbs testified, in part:

"I live at 63 Clingman avenue, Asheville, and am the wife of Lawrence Gibbs. I know Maggie Gibbs. She is the mother of Lawrence Gibbs, and on the 27th day of December, 1926, lived in Waynesville, North Carolina. I do not know how long she has been living in Waynesville, practically all of her life, I suppose. On the 27th day of December, 1926, she was living in Waynesville, over in the colored town, not very far from Main street, I suppose about a quarter of a mile from Main street, and I should think in sight of Main street. On the 26th day of December, 1926, she had been living in that same house about nine or ten years. On the 26th day of December, 1926, Lawrence Gibbs got shot. It was about two-thirty or three o'clock in the morning of the 27th day of December, 1926. I sent a telegram to the mother of Lawrence Gibbs between seven and eight o'clock, I couldn't tell the exact hour. I did not go to the office of the Company to send the telegram. I sent it over my telephone. The message, which you show me, is the message that I sent. The Western Union did not deliver to me that day any message to the effect that the message I sent had not been delivered to Maggie Gibbs. The first information I had that Maggie Gibbs had not received the message, was on the morning of December 28th, 1926, I got that information from Samuel Gibbs, the son of Maggie Gibbs, who called me on the telephone. Maggie Gibbs came to Asheville on the 28th of December, 1926, about five or six hours after Lawrence had died. He died at five minutes past six o'clock on the morning of the 28th, and his mother came on the one o'clock train. I could not say when it gets to Asheville. The passenger train left Waynesville for Asheville about eleven o'clock, because its gets to Asheville about one or one-thirty. I know it was one o'clock or after when she got to my house. That was the first passenger train leaving Waynesville going towards Asheville that day. The next one left at five o'clock that afternoon. Maggie Gibbs' son died before Maggie Gibbs arrived at my house.

"Q. What was the condition of Lawrence from the time he was shot up to the time he died with reference to whether he was conscious or unconscious? A. He was conscious." "My mother-in-law had no telephone in her house. The distance from Waynesville to Asheville was 32 miles.

"Q. Did he know people all the time? A. Yes, sir, he did."

Maggie Gibbs, testified, in part:

"I am the mother of Lawrence Gibbs. On December 27th, 1926, I lived right where I live now and have been living for ten years. I live within a quarter of a mile from here, in sight of Main Street. I do not know how far from Main Street, but not far. It might be 300 yards. I know where the Western Union Telegraph office was then. It was on that street going down to Charley Ray's store, just off of Main Street. It is right near the Post Office. I was at home all day December 27th, 1926. I was there that night till late in the evening I come to town. The Western Union Telegraph Company did not deliver to me any message of my son, Lawrence, having been shot. I first learned that he was shot after the train had run and my cousin asked me if I knew Lawrence was shot, and he said it was in the evening paper. It was after sun down.

"Q. What was the condition of the weather? A. Against I got home it had commenced raining and it rained all night."

The plaintiff was then asked the following question:

"Q. Did you make any effort that night to go to Asheville to the bedside of your son? A. My son looked for us, and I first looked to see if she had wrote or sent us a telegram, and by that time it was after night.

"Q. State whether or not you made any effort to get an automobile at that hour to go to Asheville? A. My sister said she would let us have her automobile but she couldn't drive it and I couldn't. I went to Asheville to see my son on the first train the next day. I think it was due to leave Waynesville about eleven o'clock, but it was after that when we left. I did not have any other way of getting to Asheville, except on the train. When I got there, my son had been dead four or five hours. I knew he was dead prior to the time I left here. I learned it that morning about six o'clock, I think. I had just got up. If the telegram introduced in evidence had been delivered to me any time on December 27, prior to the running of the evening train, I could have left on the 11 o'clock train, or the evening train either one.

"Q. Would you have left on one of these trains? A. Yes, sir. I never felt right about not getting to the bedside of my son before he died, because I think I ought to have seen my child and I could have seen him if I had gotten the telegram.

"Q. How did it affect you? A. I just can't stand to talk about it. Lawrence had lived in Asheville about ten years or more; prior to that time he lived here in Waynesville.

"Q. After he moved from Waynesville to Asheville state whether or not you were in the habit of from time to time going to see him and whether or not he would visit you, and if so, how often? A. He would come home to see me often."

Cross-examination: "I first heard that this message had been sent after the train passed here that night, December 26th or 27th, I reckon it was. I learned it out of the paper. I did not learn that the telegram had been sent until the night of the 27th. My son had to hunt it up. It was delivered to my son. It was never delivered to me. I found out about my son in Asheville being shot, after the evening train run, I don't know just when it was, but it was between sundown and dark. The train runs very late and I come to town and found it out from the paper. I did not telephone to Asheville that night about it. My son telephoned. I wasn't with him. Next morning about 6 o'clock I found out my son was dead. Mattie phoned over to the preacher and he brought me word. My son was buried in Waynesville. I was at his funeral and came over with the funeral procession from Asheville. From the time I heard on the afternoon of the 27th that my son had been seriously shot, I did not communicate with Asheville at all, but I had my son to. I wasn't able. After I got the information out of the paper. I didn't make any effort to get a way to go to Asheville that night. My son did. A woman like me don't get out in the night. I did not myself make any effort to get a way to go to Asheville that night. I had no way to go to Asheville and made no effort to go.

"Q. You had no way and you made no effort to go? You didn't try to go on the bus, did you? A. Colored folks don't ride on the bus, they are not allowed to.

"By the Court: Gentlemen, you will not consider the answer, that colored folks are not allowed to ride on the bus.

"I am 56 years old. Lawrence was 39 when he died. He was my oldest son."

The issues submitted to the jury and their answers thereto were as follows:

"1. Did the defendant negligently fail to transmit and deliver the message, as alleged in the complaint? A. Yes.

"2. If so, was the plaintiff injured thereby? A. Yes.

"3. What amount, if any, is the plaintiff entitled to recover by reason of such injury? A. $1,250."

The material assignments of error will be considered in the opinion.

Francis R. Stark, of New York City, and Alfred S. Barnard, of Asheville, for appellant.

Morgan & Ward, of Waynesville, for appellee.

CLARKSON J.

Interstate messages are governed by the federal rule,...