Kivett v. Western Union Telegraph Co.

• Decision Date: 18 October 1911
• Citation: 72 S.E. 388,156 N.C. 296
• Parties: KIVETT et al. v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

72 S.E. 388

156 N.C. 296

KIVETT et al. v. WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina

October 18, 1911

Appeal from Superior Court, Harnett County; Cooke, Judge.

Actions by Z. T. Kivett and H. H. Kivett against the Western Union Telegraph Company, tried together. Judgment in each case for plaintiff, and defendant appeals. Affirmed.

Where there is no evidence, in an action against a telegraph company for negligence in the delivery of a death message that the company "offered" the message at plaintiff's boarding house, or "delivered" it at his place of business, instructions assuming an offer or delivery of the telegram as a fact are properly refused, as being inapplicable to the evidence.

These were two separate civil actions; each action being for the recovery of damages for mental anguish alleged to have been caused by the delay and nondelivery of telegrams, relating to the death of one Herndon H. Kivett. One suit was in the name of Z. T. Kivett, father of the deceased, and the other in the name of H. H. Kivett, twin brother of the deceased. By consent the two cases were tried together.

There was evidence on the part of the plaintiffs tending to establish the following facts: That on the 23d day of July 1909, the plaintiff, Z. T. Kivett, was living at Buie's Creek, Harnett county, N. C., and the plaintiff H. H. Kivett his son, was living at Detroit, Mich., and was boarding with a Mrs. Pack, at 28 Stimson Place, and was working at the Ford Motor Company shops in that city. That at 7 o'clock a. m on the 23d of July, a message was delivered to the defendant at Benson, in the following words: "Buie's Creek, N. C., July 23rd, 1909. H. H. Kivett, Detroit, Mich., 28 Stimson Place. Herndon died this morning. Heart failure. Will bury Sunday evening. Wire if you come. Z. T. Kivett." That at 7:35 said message was promptly dispatched by the Benson office and was received at the office of defendant in Detroit at 7:23 a. m. (central time), being about an hour later. That about 8 o'clock the same morning this telegram was carried by a messenger boy of the defendant to 28 Stimson place, where he was told by the sendee's landlady, Mrs. Edith M. Pack, that the sendee, H. H. Kivett, was not at home, that he was at the Ford motor works. That she offered to pay the charges, but was told by the messenger boy that it must be delivered personally. That the said H. H. Kivett was at work at said motor works on said day, and the telegram was not delivered to him there. That on returning to the boarding place at 6 o'clock p. m. on the same day the telegram arrived, he was informed by his landlady that a telegram had come to the house for him during the day, and he thereupon went to the main office of the defendant company in Detroit, shortly after 6 o'clock p. m., and asked for the telegram, and was told by the defendant's agent in charge that none had come to his address during the day. That, after retiring for the night at about 12:30, the next morning the telegram was delivered to the plaintiff. That he immediately wired to his father that he could not reach home in time for the funeral, paid for both telegrams, and delivered this last one to the same messenger boy who had delivered the first. That if the telegram had been delivered at any time during the day up to 10 o'clock p. m. the plaintiff H. H. Kivett could and would have left Detroit in time to have reached his father's home in Buie's Creek before the funeral. There was also evidence tending to show that at the time the telegram was delivered at 12:30 a. m., July 24th, that it was impossible for plaintiff to reach Buie's Creek in time for the funeral.

A witness for the defendant, Mary Nolan, testified that on the date of the receipt of the telegram at Detroit she was in charge of a branch office of the defendant in that city; that she handled the message in controversy and sent it to the Ford motor works. She did not claim that she carried the message herself, and no witness was introduced who testified that he went to the motor works with the message.

The plaintiff, H. H. Kivett, was examined as a witness and testified that he had made the railroad connection between Detroit and Dunn once, and knew the movement of the trains. He was then asked: "Q. If the telegram had been delivered to you in the morning at the time Mrs. Pack, your landlady, told you it came there, or at a reasonable time thereafter at the Ford automobile shop, could or would you have gone home to the funeral? (Defendant objects.) A. I could and would have reached home. Q. If the company had delivered the telegram to you at or about the time they brought it to the landlady the second time at 10 o'clock, if they had delivered it to you at the Ford automobile shop, could you have gotten home? (Defendant objects; overruled. Exception.) A. I could have reached home if they had delivered that telegram any time before 9 o'clock p. m. Friday, July 23d. I could have reached home in time for my brother's funeral. I would have done it. I could have reached home at the time I inquired for it in time for my brother's funeral." He was also asked: "Q. When you went out West, state whether or not your brother went with you. A. He did. Q. How long did he stay with you? (Defendant objects.) A. About three years."

The defendant tendered the following issues: (1) Did the defendant negligently delay the delivery of the telegram sent to H. H. Kivett? (2) Did the defendant receive and negligently fail to transmit and deliver a telegram from Detroit, Mich., to Dunn, N. C., as alleged in the complaint of Z. T. Kivett? (3) Were the plaintiffs injured thereby? (4) What damages, if any, is the plaintiff Z. T. Kivett entitled to recover as mental anguish caused by such negligence, if any there was? (5) What damages, if any, is the plaintiff H. H. Kivett entitled to recover as mental anguish caused by such negligence, if any there was? Which his honor refused to submit, and defendant excepted.

His honor submitted the following issues: (1) Did the defendant negligently delay to deliver the telegram addressed to H. H. Kivett, in Detroit, Mich., as alleged in the complaint? (2) If the telegram had been delivered promptly, could and would plaintiff's son, H. H. Kivett, have attended the funeral of plaintiff's son, Herndon H. Kivett? (3) What damages, if any, is the plaintiff, Z. T. Kivett, entitled to recover of the defendant? (1) Did the defendant negligently delay the telegram sent to H. H. Kivett in Detroit? (2) If the telegram had been delivered promptly, could and would plaintiff have attended the funeral of his twin brother, Herndon H. Kivett? (3) What damage, if any, is the plaintiff, H. H. Kivett, entitled to recover of the defendant company? Defendant objected to the submission of the issues in both cases. Objection overruled, and defendant excepted.

The defendant tendered the following prayers for instructions:

"(1) That if the jury find from the evidence that the telegram as sent was directed to H. H. Kivett, at No. 28 Stimson place, Detroit, Mich., that the same was promptly transmitted to Detroit, and within a short time after its receipt there offered the same at the said address, the boarding place of the plaintiff, but the plaintiff was not there, then any effort made by the defendant to deliver at another place was not called for in the contract under which the message was sent, and you should answer the first issue, 'No."' Refused, and defendant excepted.

"(2) If the jury find from the evidence that the message was delivered within a reasonable time, to the Ford motor works, in pursuance of information furnished to the messenger boy, then the defendant has fulfilled its contract, and it was not the defendant's duty to locate plaintiff H. H. Kivett among the several employés of that company, and if you so find, you should answer the first issue, 'No."' Refused, and defendant excepted.

"(3) The plaintiffs cannot recover damages for any suffering occasioned by the death of Herndon Kivett, but, if at all, only such mental anguish as resulted directly from the inability of H. H. Kivett to get to the funeral, and the jury must be satisfied by the greater weight of the evidence that such inability to reach the funeral was caused directly by the negligence of the defendant." Refused, and defendant excepted.

"(4) It was the duty of the plaintiff H. H. Kivett to use all available means to have the funeral postponed, and to get there, if possible, before he is entitled to recover at all, and if you are not satisfied that he used his best efforts you should answer the second issue, 'No."' Refused, and defendant excepted.

"(5) Mere disappointment, sorrow, or regret at not being able to reach the funeral, or at not having the son at such funeral, would not constitute

...