Wood v. Western Union Telegraph Co.

• Decision Date: 20 May 1908
• Citation: 61 S.E. 653,148 N.C. 1
• Parties: WOOD v. WESTERN UNION TEL. CO.
• Court: North Carolina Supreme Court

61 S.E. 653

148 N.C. 1

WOOD v. WESTERN UNION TEL. CO.

Supreme Court of North Carolina

May 20, 1908

Appeal from Superior Court, Buncombe County; Guion, Judge.

Action by Jay Wood against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals. Reversed.

In the absence of proof to the contrary, it will be presumed that the common law, authorizing a recovery for mental anguish for breach of a telegraph company's duty to deliver a death message, prevails in a sister state from which the message was sent.

This action was brought to recover damages for negligently failing to deliver a telegram. Grant Woods died in Knoxville, Tenn October 14, 1905, and immediately after his death his widow Leona Woods, delivered to the defendant, for transmission over its wires to the plaintiff, the brother of the deceased who resided at Asheville, N. C., the following message "Knoxville, Tenn. Oct. 14, 1905. Jay Woods, No. 38 Depot street, Asheville, N.C. Come at once. Grant Woods is dead. If not, let know. Leona Woods." The plaintiff testified in his own behalf as follows: "My name is Jay Wood. I live in Asheville, and own my own home in the rear of No. 83 Depot street, where I have lived for about 10 years. I am a porter in the employ of the Southern Railway Company, and on the 14th day of October, 1905, and before and after that time, was running on a passenger train between Asheville, N. C., and Columbia, S. C. My run brought me into Asheville between 1 and 2 o'clock on one day, and took me out about 4 o'clock on the following day. I was in Asheville on Saturday, the day the telegram was received at the Asheville office, and until about 4 o'clock on the following day, when I went out on my run. Monday, on my way back to Asheville, I learned at Spartanburg, about 11 a.m., that my brother, Grant Woods, was dead, and that his body had passed through Asheville that morning, and would be buried at Cleveland, N. C., that day. My brother lived at Knoxville, and was engaged in railroading. Our mother's home is near Cleveland, and Grant's body was taken there from Knoxville for burial. My train was late that day (Monday) getting into Asheville, so late that as we came into the yard, No. 12, the train for Cleveland, was pulling out. The next train for Cleveland was Tuesday morning, about 7 o'clock. I took this train. On arriving at Asheville Monday afternoon, and finding I could not go to Cleveland until next morning, I wired my mother's home, asking that they hold the body until I arrived. I reached some time after noon Tuesday, and walked to my mother's home, about five miles in the country, arriving about 4 o'clock. Grant's funeral was held about an hour after my arrival, and I was present at his funeral. When I reached home, the condition of Grant's body was such that I could hardly tell who he was. If the telegram had been delivered to me Saturday night, when it was received at the Asheville office, I could and would have caught the train for Knoxville, due to leave that night about 1:10 a. m. and to arrive at Knoxville about daylight Sunday morning. If I had missed this train, there were two trains on the following day, one about 7 a. m. and one about 2:30 p. m., from Asheville for Knoxville. My house is about 75 or 100 feet in the rear of Depot street. There was one house between my house and Depot street. There was no house fronting on Depot street numbered 83, and a person walking along the street could not have seen such a number. I did not live at 38 Depot street, and a message addressed to that number and delivered there would not have reached me, as there was a white family living there." Will Robertson, witness for the plaintiff, testified that on October 15, 1905, he resided in the rear of No. 85 Depot street, and that the above message was delivered to him on Sunday, about 6 o'clock p. m., and by him turned over to Jay Wood's wife later in the evening. The plaintiff also offered in evidence the then current city directory of Asheville. It was admitted that this was the city directory, but defendant did not admit that it was correct. The directory showed the name of "Jay Wood, porter," and that he lived in the rear of house No. 83, Depot street. At the close of plaintiff's evidence the court, on motion of the defendant's counsel, ordered a nonsuit under the provisions of the statute. Defendant excepted and appealed.

Frank Carter and H. C. Chedester for appellant.

Merrick & Barnard, for appellee.

WALKER J.

The case should have been submitted to the jury, and the court erred in deciding, as matter of law, that there was no evidence of actionable negligence. The defendant introduced no evidence, and it, therefore, does not appear that it made any effort, not even the slightest, to deliver the message, notwithstanding the mistake in the street address. This court, in Hendricks v. Telegraph Co., 126 N.C. 304, 35 S.E. 543, 78 Am. St. Rep. 658, held it as well settled by the authorities that, when a telegraph company receives a message for delivery to the addressee, and fails to deliver it, it becomes prima facie liable, and the burden rests upon it of proving such facts as will excuse its failure. That case followed the principle as stated in Sherrill v. Telegraph Co., 116 N.C. 655, 21 S.E. 400, and it has been since approved in numerous cases. Laudie v. Telegraph Co., 126 N.C. 431, 35 S.E. 810, 78 Am. St. Rep. 668, Rosser v. Telegraph Co., 130 N.C. 251, 41 S.E. 378, and Cogdell v. Telegraph Co., 135 N.C. 431, 47 S.E. 490, where the cases upon this question are collected. The court said in Rosser v. Telegraph Co., supra, that: "All of the facts relating to the transmission of the message were within the possession of the defendant, and it did not choose to disclose them to the court and jury. From the very nature of telegraphy, neither the sender nor sendee could personally know what became of the message, or why it was not received at its destination, or, if received, why not delivered." In Hinson v. Telegraph Co., 132 N.C. 460, 43 S.E. 945, the message was addressed to "M. L. Hinson in care of the Olympia Mills, Columbia, S. C.," without giving any street number or address. The messenger was informed that Hinson was not at the mills. The agent of the mills refused to receive it for him, and this court said that the case stood as if the message had not been sent in care of the mills, and with no better information of the whereabouts of Hinson than if it had simply been addressed to him at the city of Columbia, S. C. It was nevertheless held to be the duty of the defendant to make every reasonable effort, and to exercise due diligence to find the sendee, and to deliver the message, and this is the doctrine as stated in all the decisions of this court where such a point has been presented. Cogdell v. Telegraph Co., supra; Hendricks v. Telegraph Co., supra. In Hinson's Case the defendant, as it appeared, had used due diligence to find the addressee.

But the case of Lyne v. Telegraph Co., 123 N.C. 129, 31 S.E. 350, would seem to be directly in point, and to charge the defendant with negligence, at least prima facie, as the facts now appear in this case. It was there held to be the duty of the defendant to inquire at the post office for the residence of the sendee, no street address having been given. The rule is that the defendant must make reasonable inquiry, and exercise that degree of care which a prudent person would use under the circumstances, in the effort to deliver the message. In this case it seems that the defendant made no attempt to deliver the message. The misdirection did not excuse this omission on its part. If the messenger boy had inquired at No. 38 Depot street, he would have been told, it is true, that Jay Woods did not live there, but he might have acquired information which would have led to the discovery of his residence, as he lived close by. The entry in the city directory was also some evidence to be submitted to the jury upon the issue of negligence. The slight variation from the true name-that is Jay Wood for Jay Woods-was not sufficient to deprive it of its character as evidence, and was hardly sufficient to mislead a person of ordinary prudence. Cogdell v. Telegraph Co., supra. No inquiry was made at the post office. Lyne v. Telegraph Co., supra. Indeed, the defendant, so far as the case shows, did not even send out a messenger boy with the telegram, for the purpose of finding the sendee. If due search had been made for him, and he could not be found, it was still required to wire back for a better address, which it did not do, and this was evidence of negligence. Hendricks v. Telegraph Co., 126 N.C. 304, 35 S.E. 543, 78 Am. St. Rep. 658; Cogdell v. Telegraph Co., 135 N.C. 431, 47 S.E. 490. In any view of the case there was evidence of negligence proper to be considered and passed upon by the jury, and the judgment of nonsuit was therefore erroneous.

The fact that the plaintiff did see his brother's body before the burial is no defense to this action. The plaintiff has failed to perform a plain duty, which it owed to him, and...