Hancock v. Western Union Tel. Co

• Citation: 142 N.C. 163,55 S.E. 82
• Parties: HANCOCK . v. WESTERN UNION TELEGRAPH CO.
• Decision Date: 02 October 1906
• Court: United States State Supreme Court of North Carolina

55 S.E. 82

142 N.C. 163

HANCOCK .

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina.

Oct. 2, 1906.

1. Telegraphs—Delay in Message—Evidence.

In an action for defendant's delay in delivering a telegram to plaintiff's father, announcing the death of plaintiff's brother, and that plaintiff would arrive with the corpse at a certain station on the next day, evidence that on arrival the trainmen took the corpse from the baggage car and set it down on the platform in the rain, over plaintiff's objection, was irrelevant and improperly admitted.

2. Same—Delay in Delivery—Damages.

Where a telegraph company failed to promptly deliver a message, it could only be held liable for such damages as it should have anticipated, from the knowledge it had and that which the law imputes to it, would probably result from its default.

[Ed. Note.—For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, §§ 64-68.]

3. Trial—Misleading Instructions.

In an action for delay in delivering a message, involving an issue as to the law of another state, certain lawyers testified as to their opinion concerning the law of such state, whereupon defendant requested an instruction that, if the jury believed the evidence of such witnesses, the jury should assess plaintiff's damages at 25 cents. Held, that such instruction was properly refused, as depriving the jury of the right to determine for themselves the weight to be given to the opinions of such witnesses.

[Ed. Note.—-For cases in point, see vol. 46, Cent Dig. Trial, §§ 439-466.]

Appeal from Superior Court, Craven County; Long, Judge.

Action by H. S. Hancock against the Western Union Telegraph Company to recover damages for the negligent delay in the delivery of a telegram. From a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

F. H. Busbee & Son and W. W. Clark, for appellant.

W. D. Mclver and O. H. Guion, for appellee.

BROWN, J. This case was before this court at spring term, 1905, and is reported in 137 N. C. 498, 49 S. E. 952, 69 L. R. A. 403. The facts are fully set out in the opinion there reported, and it is unnecessary to repeat them.

On the last trial the court, over defendant's exception, permitted the plaintiff to testify as follows: "The trainmen took the corpse from the baggage car and set it down on the platform in the rain. I put the widow in thestation, and then run down and asked them please not to set the body of my dead brother down in the rain. The body was out on the platform, and I ran and asked them not to set it there in the rain, but the train was moving off, " etc. In the admission of this testimony and the refusal to withdraw its consideration from the jury we think that there was error. The contract for the transmission of the telegram was made on Saturday, July 11th, and it can hardly be supposed to have been within the reasonable contemplation of the contracting parties that there would be a rain on Monday morning, and that the employes of the railroad company, with whom defendant had no connection whatsoever, might leave the body of the deceased on the platform in the rain. The duty to remove the body and put it in a suitable place did not devolve upon the defendant, but upon the employes of the railroad company, and the defendant is not to be held responsible for their neglect. It has always been held in this state that the telegraph company is only responsible for such damages as were "reasonably In contemplation of the parties as the natural result of the failure of duty on the part of the defendant." Kennon v. Tel. Co., 126 N. C. 232, 35 S. E. 468. The case of Telegraph Co. v. Turner, from Texas, reported in 78 S. W. 362, and cited with approval in Telegraph Co. v. MeNairy (Tex. Civ. App.) 78 S. W. 969, fully sustains the defendant's contention as to the inadmissibility of such evidence. See, also, Telegraph Co. v. Mellon (Tenn.) 33 S. W. 725, and Telegraph Co. v. Stiles (Tex. Sup.) 34 S. W. 438. In the latter case the court, speaking of the probable consequences of admitting such testimony, says: "The admission of such testimony would awaken in the jury a sympathy for the distressed sister, and. although it might be unconsciously done, would induce them to increase the amount of...