Rosser v. Western Union Tel. Co

• Decision Date: 06 May 1902
• Court: North Carolina Supreme Court
• Parties: ROSSER v. WESTERN UNION TEL. CO.

41 S.E. 378

130 N.C. 251

ROSSER

v.WESTERN UNION TEL. CO.

Supreme Court of North Carolina.

May 6, 1902.

TELEGRAPHS—FAILURE TO DELIVER MESSAGE—ACTION FOR DAMAGES—PRIMA FACIE CASE—RECEIPT OF MESSAGE WITH CHARGES PREPAID—EXCUSE FOR NONDELIVERY—BURDEN OF PROOF—DUTY TO SEARCH FOR ADDRESSEE.

1. In an action against a telegraph company for failure to deliver to plaintiff a message announcing the death of his father, plaintiff testified that the last time he saw his father was four years before his death; such evidence being introduced to show the condition of deceased's health when plaintiff last saw him. Defendant did not object to the testimony so far as it concerned deceased's health, and the court instructed the jury that they should not permit it to enter into the question of damages. Held that, in the absence of a contrary showing, the jury would be presumed to have followed the court's instructions, and there was no error.

2. Where, in an action against a telegraph company for failure to deliver to plaintiff a message announcing his father's death, defendant offered an instruction that the jury should use great care to distinguish the suffering caused by plaintiff's being kept from attending the funeral by failure to receive the message and that caused by the death itself, there was no error in modifying such instruction by striking out the word "great."

3. Where, in an action against a telegraph company for failure to deliver a message, it is shown that defendant received the message with charges prepaid, a prima facie case is made out, and it is then incumbent upon defendant to show why the message was not delivered.

4. The fact that an addressee of a telegram lives several miles from the point to which the message is directed does not excuse the telegraph company from making prompt and diligent inquiry to see if he is not within its delivery district when the message arrives.

Appeal from superior court Moore county; NeaL Judge.

Action by B. F. Rosser against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

R. C. Strong, for appellant.

Seawell & Burns and Black & Adams, for appellee.

COOK, J. Plaintiff's brother delivered a message to defendant company's agent at Sanford, to be transmitted and delivered to him (plaintiff) at West End, in these words: "Come home quick. Father is dead." The charges (40 cents) were prepaid. The message was never delivered. inferentially, it appears that the defendant company's line terminated at Aberdeen, and the line of another company extended thence to West End. Plaintiff alleges in his complaint that by reason of the gross negligence, carelessness, and willful conduct of the defendant in not transmitting and delivering the message to him, he was prevented from being present to see his father before the interment, and from being present at the funeral, and thereby suffered great damage both in body and mind, to the sum of $1,900. Defendant, in its answer, admits receiving the message; alleges that it was transmitted promptly to Aberdeen, and there given to another and independent telegraph company, and that it, by special contract, was made the agent of the sender, without liability, to forward it over the line of said other company. Upon the issues submitted, to wit: "(1) Did plaintiff, within sixty days after he had learned that said message had been sent, present to defendant company a claim in writing for damages for the alleged failure to deliver said message? (2) Was the message set out in the complaint sent under the contract set out in the answer, —that defendant was made the agent of the sender to forward, without liability, said message over lines of other company, when necessary to reach destination? (3) Did defendant negligently fail to deliver the message sent by C. K. Rosser to the plaintiff? (4) What damage, if any, is plaintiff entitled to recover? —the jury answered the first and third, "Yes." There was no testimony bearing on the second, and that was answered by consent of the parties, "No;" and to the fourth they answered, "$500." Defendant moved for a new trial for errors assigned in the record. The motion was overruled, and defendant appealed.

The first exception is to the...