Hood v. Western Union Telegraph Co.
| Decision Date | 27 May 1904 |
| Citation | 47 S.E. 607,135 N.C. 622 |
| Parties | HOOD et ux. v. WESTERN UNION TELEGRAPH CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; McNeill, Judge.
Action by S. L. Hood and wife against the Western Union Telegraph Company. From a judgment of nonsuit, plaintiffs appeal. Reversed.
Where an action was dismissed for lack of evidence, a new action could be brought for the same cause within one year.
Maxwell & Keerans, for appellants.
F. H Busbee & Son, for appellee.
The evidence is that the male plaintiff, at the request of the feme plaintiff, his wife, and for her use and benefit delivered to the telegraph operator in Charlotte at 7 a. m. April 1, 1900, the following prepaid message to be transmitted to Concord, N. C., to W. M. Petrea, the father of the feme plaintiff: The child was very ill, and the object of the message was that the feme plaintiff's father and mother might come to Charlotte to comfort and assist her. The telegraph operator was told that the child was very ill, and that the message should be sent at once, and he promised that it should be. The sendee lived seven or eight miles from Concord, but was well known at that place. It was the first message ever sent by the plaintiffs, and they knew nothing about free delivery limits, and, this being the nearest telegraph station to the sendee, supposed the message would be delivered. The operator, neither at Charlotte nor Concord, made any objection, nor informed the plaintiff of any hesitancy or difficulty in delivering, and the plaintiffs, supposing the message had been delivered, expected and looked for the arrival of the plaintiff's mother and father till midnight. The child died 4 p. m. that afternoon. If the defendant had advised the senders that an additional sum would be required before delivery, it would have been paid or, if advised promptly that the defendant would not deliver it at all, the plaintiffs would have made other arrangements to notify Petrea and wife; and that Petrea and wife would have come to Charlotte that day if he had received the message, and would have paid any extra charges demanded if the telegram had been delivered to him. Such is the substance of the evidence. It was further in evidence that it was the general custom of the telegraph company at Concord either to allow its messenger boy to deliver messages out in the country, and collect from sendees, or to wire back to the sending office the additional charges for such delivery, and to advise the sender what such charges would be. The evidence is that, if either course had been pursued, the sender and the sendee (as the case might be) would have paid the charges. It was also in evidence that the office in Concord frequently did deliver, or allowed its messenger boys to deliver, messages out in the country outside of Concord without charges being prepaid, when they thought the sendee would pay the charges; and when in doubt about this the Concord operator always advised the sending office that the sender should be notified what such charges would be; that the Concord office had frequently sent such messages out in the country by N. J. Corl, a liveryman, and he had often collected the extra charge without prepayment being guarantied; that, if the message had been handed to Corl, he would have delivered it to Petrea without prepayment being guarantied by the defendant; that a similar custom of delivery outside of free delivery limits also prevailed in Charlotte; that the plaintiffs had lived in Charlotte two years prior to sending this message, their mail being delivered daily by the post-office carrier; that the messenger boy in Charlotte on duty that day knew where the plaintiffs resided, but the defendant made no inquiry of him, nor made any effort to notify the plaintiffs of the nondelivery of the message, nor of any doubt or hesitation as to delivering it to the sendee; that they had no relatives in Charlotte to assist them in preparing their child (who was their eldest and only child) for burial, and, deciding to carry the body to the feme plaintiff's father's home for burial on the next morning (Monday) at 7 a. m., the male plaintiff, at the request of and for the use and benefit of his wife, the female plaintiff, delivered the following prepaid message directed to James Dry at Concord, that this message was sent in order that the...
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