Sherrill v. Western Union Tel. Co

Decision Date05 April 1895
Citation21 S.E. 429,116 N.C. 655
CourtNorth Carolina Supreme Court
PartiesSHERRILL. v. WESTERN UNION TEL. CO.

Action against Telegraph Company — Failure to Deliver Message—Damages—Mental Anguish.

1. Where, in an action against a telegraph company for failure to deliver a message, plaintiff shows that defendant received it, and failed to deliver it, a prima facie case is made, and the burden is on defendant to show excuse for such failure.

2. Plaintiff having made a prima facie case, the question of negligence is for the jury, and an instruction that "upon all the evidence, if believed, plaintiff is not entitled to recover, " violates Code, § 413, forbidding an expression of opinion by the court upon the weight of evidence..

3. An instruction that, if defendant made proper inquiries as to the whereabouts of the addressee, from persons of wide acquaintance in the neighborhood, and, upon information so received, delivered the same to another person of the same name, it had used reasonable diligence, was error, as leaving out of view when and after how much delay the inquiries were made.

4. Where a message which, on its face, asked for an answer, was given to a telegraph company, and money paid for special delivery, the failure of the receiving agent to wire the sending office for a better address, when he found difficulty in delivering the message, and to notify the sender immediately of its nondelivery, was negligence.

5. A telegraph company cannot, by contract, restrict its liability for mistake or delay in the delivery of a message.

6. Where a telegraph company negligently fails to deliver a message, the nature of which appears on its face, plaintiff can recover for mental anguish caused thereby.

Appeal from superior court, Iredell county; Bryan, Judge.

Action by H. Z. Sherrill against the Western Union Telegraph Company for damage? caused by the nondelivery of a message. From a judgment for defendant, plaintiff appeals. Reversed.

The first instruction granted at the instance of defendant, and to which plaintiff excepted, was as follows: "If the jury believe that defendant, through its operator and messenger boy, made proper inquiries as to the whereabouts of the person to whom the message was addressed, from people of wide acquaintance in the neighborhood, and, upon information so derived, delivered it to another person of the same name, who received it witn out notifying defendant that it was not intended for him, then the defendant had used reasonable diligence in delivering said message, and is guilty of no negligence for which plaintiff can recover."

Burwell, Walker & Cansler and L. C. Caldwell, for appellant.

Jones & Tillett, for appellee.

CLARK, J. The plaintiff having shown the delivery of the message to the defendant, with the charges prepaid (and It would have been the same if the defendant had accepted the message with charges to be collected), and the failure to deliver the message, a prima facie case was made out, and the burden rested on the defendant to show matter to excuse its failure. Thomp. Electr. § 274, and cases cited; Bartlett v. Telegraph Co., 16 Am. Rep. 447; Pearsall v. Telegraph Co., (N. Y. App.) 26 N. E. 534.

The court erred in granting the defendant's second prayer for instruction, —that "upon all the evidence, if believed, the plaintiff is not entitled to recover, and the jury should answer the fourth issue, 'No.'" The court should instruct the jury that a given state of facts, as a matter of law, would or would not be negligence. Emry v. Railroad Co., 109 N. C. 589, 14 S. E. 352. But when the plaintiff makes out a prima facie case, then to instruct the jury that the evidence rebuts it and overcomes it is to invade the province of the jury, and violates chapter 452 of the Acts of 1796 (Code, § 413), which forbids an expression of opinion by the judge upon the weight of the evidence.

The first instruction granted at the instance of the defendant was erroneous, because it left out of consideration when and after how much delay the inquiries were made. The promptness with which they were made was an essential element in an Instruction as to whether there was reasonable diligence.

The third instruction given at the instanceof the plaintiff was erroneous. After showing the contract and the failure to deliver the...

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52 cases
  • Helms v. Western Union Tel. Co
    • United States
    • United States State Supreme Court of North Carolina
    • December 18, 1906
    ...who neither paid for nor ordered the sending of the messages): Sherrill v. Telegraph Co., 109 N. C. 527, 14 S. E. 94; Id., 116 N. C. 656. 21 S. E. 429; Id., 117 N. C. 354, 23 S. E. 277; Green v. Telegraph Co., 136 N. C. 489, 49 S. E. 165, 67 L. R. A. 985, 103 Am. St Rep. 955; Carter v. Tele......
  • Wolfe v. State of North Carolina
    • United States
    • United States Supreme Court
    • June 27, 1960
    ...if given the opportunity.' Slocumb v. Philadelphia Construction Co., 142 N.C. 349, 351, 55 S.E. 196, 197; Sherrill v. Western Union Telegraph Co., 116 N.C. 655, 21 S.E. 429; Broadwell v. Ray, 111 N.C. 457, 16 S.E. 408; Lowe v. Elliott, 107 N.C. 718, 12 S.E. 383. Here, the case on appeal was......
  • Thos. G. Hardie & Co v. Western Union Tel. Co
    • United States
    • United States State Supreme Court of North Carolina
    • June 24, 1925
    ......Young v. Tel. Co., 168 N. C. 36, 84 S. E. 45; Rhyne v. Tel. Co., 164 N. C. 394, 80 S. E. 152; Williamson v. Postal Tel. Cable Co., 151 N. C. 223, 65 S. E. 974; Hendricks v. Tel. Co., 126 N. C. 304, 35 S. E. 543, 78 Am. St. Eep. 658; Sherrill v. Tel. Co., 116 N. C. 655, 21 S. E. 429; Brown v. Tel. Co., 111 N. C. 187, 16 S. E. 179, 17 L. R. A. 648, 32 Am. St. Rep. 793, overruling Lassiter v. Tel. Co., 89 N. C. 334; 37 Cyc. 1684.        But, since Congress has taken possession of the entire field of commerce, with ......
  • Helms v. Western Union Tel. Co.
    • United States
    • United States State Supreme Court of North Carolina
    • December 18, 1906
    ......Telegraph Co., 142. N.C. 532, 55 S.E. 363; Harrison v. Telegraph Co. (N. C.) 55 S.E. 435; Shepard v. Tel. Co. (N. C.) 55. S.E. 704. Beneficiary named in message (these are really. cases of disclosed principals, but who neither paid for nor. ordered the sending of the messages): Sherrill v. Telegraph Co., 109 N.C. 527, 14 S.E. 94; Id., 116 N.C. 656, 21 S.E. 429; Id., 117 N.C. 354, 23 S.E. 277; Green. v. Telegraph Co., 136 N.C. 489, 49 S.E. 165, 67 L. R. A. 985, 103 Am. St. Rep. 955; Carter v. Telegraph Co.,. 141 N.C. 375; 54 S.E. 274; Kernodle v. Telegraph. Co., 141 N.C. 437, ......
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