47 S.E. 490 | N.C. | 1904
This is an action brought by the feme plaintiff to recover damages for mental anguish alleged to have been suffered by her on account of her failure to attend her father's funeral, which she would have attended but for the negligence of the defendant in failing to deliver a telegram informing her of her father's death. (432) The telegram was as follows: "Mount Airy, N.C. Nov. 3, 1902. Mrs. Frank Codgell, Charlotte, N.C. Your father died suddenly this morning. W. F. Martin."
It is admitted in the complaint that the name of the sendee in the message was misspelled "Codgell," instead of "Cogdell," as it should have been. The mistake was caused by transposing the two letters g and d.
The assignments of error include thirty-nine exceptions. Thirty-two of these, referring to the admissibility of evidence become practically immaterial in the view we take of the case. The exceptions to the refusal of prayers and to the instructions as given, aside from the usual defensive prayers for nonsuit and direction of the verdict, are substantially included, in principle at least, in the following prayer: "That the defendant company having received a telegram for transmission addressed to Mrs. Frank Codgell was under no obligations to find, or attempt to find, the feme plaintiff and deliver the message to her, and the jury are therefore instructed to answer the first issue `No.'" The record states that the defendant introduced no testimony.
In discussing the points involved in this case, we will not attempt to follow the order of the exceptions, but will state the general principles as they suggest themselves. It is well settled that a telegraph company is in the nature of a common carrier, and, subject to reasonable regulations, is required to receive and promptly transmit and deliver all messages tendered in good faith. It may require prepayment, but if it accepts a message without such requirement it is held to the same degree of care and diligence as if the proper charges had been prepaid. If for any reason it cannot deliver the message, it becomes its duty to so inform the sender, stating the reason therefor, *308 so that the sender may have the opportunity of supplying the deficiency, whether it be in the address or additional cost of delivery. The (433) failure to notify the sender of such nondelivery is of itself evidence of negligence. Proof or admission that the company received a message for transmission and failed to deliver it to the sendee, within a reasonable time, raises a prima facie case of negligence, and imposes upon the defendant the burden of alleging and proving such facts as it may rely on in excuse. In the case at bar it clearly appears that a message was received by the defendant which was intended for the plaintiff, although her name was misspelled by the transposition of two letters. The defendant did not prove or even allege any effort whatever to deliver the message. There is no evidence that it was sent to Charlotte, nor was any notice given to the sender of its nondelivery until eight or ten days after it was received for transmission. Apparently not even then would such notice have been given had not the sender called at the office and inquired what had become of the message. We think the defendant must lie under the burden which it made no attempt to lift or shift. Under these circumstances the plaintiff was not required to prove affirmatively the negligence of the defendant, or, what is equivalent thereto, that the defendant might have found the sendee by proper diligence. It follows that whatever error there may have been in the admission of evidence tending to prove that fact was immaterial and harmless in view of the legal presumption to the same effect. If any evidence has been introduced by the defendant to rebut the presumption so as to raise a question as to the relative weight of the evidence, the case would be different.
The above principles are too well settled by the decisions of this Court to require any citations from other jurisdictions. The presumption of negligence from the acceptance and nondelivery of a telegram is held in the following cases: Sherrill v. Telegraph
(434) Co.,
In Sherrill's case this Court says, through Clark J., on page 656: "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." *309
In Hendricks v. Telegraph Co.,
The same language is quoted with approval in Laudie v. Telegraph Co.,
In Rosser v. Telegraph Co.,
"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."
That a telegraph company is in the nature of a common carrier, owing certain duties to the public irrespective of a personal contract, is held in Cashion v. Telegraph Co.,
In Laudie v. Telegraph Co.,
That it is the duty of the telegraph company to promptly inform the sender of a message when, for any reason, it cannot be delivered, is held in Hendricks v. Telegraph Co.,
In Hendricks v. Telegraph Co.,
This language is quoted with approval in Laudie's case.
In Hinson's case, Connor, J., speaking for the Court, says: "Viewed from this standpoint, the defendant had in its possession a message addressed to M. L. Hinson with no direction as to place of residence other than the city of Columbia, S.C. Its duty upon this state (437) of facts was to use every reasonable effort to find and deliver the message to the sendee, and, upon failure to do so, to ask for a better address." *311
This would dispose of the case, provided there had been no mistake in the spelling of the name of the sendee. In any event, we do not think that such a mistake would relieve the defendant from the burden of showing that it could not have delivered the message with the exercise of reasonable diligence. The defendant does not allege any effort whatever on its part, but contends that the misspelling of the name relieved it from any such obligation. This contention cannot be sustained upon any legal principle.
Suppose a telegraph company were to receive a prepaid message addressed to a well-known resident named Brown, could it justify itself in keeping both the money and the telegram without any effort whatever to deliver, simply because the addressee happened to spell his name Browne? If the company was unable after reasonable diligence to deliver the message on account of the misspelling of the name, it should set those facts up in defense. This would then invoke the doctrine of idem sonans, and raise a question of fact, to be determined by the jury, as to whether the correct spelling of the name and that used in the message were sufficiently similar in sound to suggest to the average telegraph operator the identity of the sendee. We do not mean to say that the similarity of sound must be sufficient to absolutely fix the identity of the addressee, but that it must be such as to enable the employees of the company at the terminal office to find the addressee with reasonable search and inquiry. In the case at bar this question was properly left to the jury. There is much similarity in sound and much greater similarity in looks. The mistake is caused by the transposition of two letters, an error that is frequently committed by careful writers and typesetters. On the second page of the record in this case the word "sworn" is printed "sowrn" the o and the (438) w being transposed. In Herman v. Butler,
Affirmed.
Cited: Hunter v. Tel. Co., post, 469; Harrison v. Tel. Co.,