Hendricks v. W. U. Telegraph Co.
35 S.E. 543
N.C.
1900
Check Treatment
Douglas, J.,

after stating the facts. The first exception can not be sustained. The question was competent, but in any event, was harmless, as the witness answered that he did not- know. Where a party is seeking to prove a fact, and the witness answers that he does not know, the answer is in fact more favorable to the opposite party than if the question- had been excluded, because it prevents any unfavorable inference. The point so clearly presented and elaborately discussed, whether the defendant company was bound to make inquiries beyond the local limits of free delivery, does not appear ta arise in this case, in the view we take of it. It is well settled that where a telegraph company receives a message for deliv-evry and fails to deliver' it with reasonable diligence, it becomes prima facie liable, and that the burden rests upon it o-f alleging and proving such facts as it relies upon to excuse *310 its failure. Sherrill v. Telegraph Co., 116 N. C., 655 ; S. C., 117 N. C., 352; Gray Com. by Tel., sec. 26; Thompson Elec., sec. 274, and eases therein cited. The failure to deliver within reasonable time is quivalent to non-delivery, as far as the principle of liability is concerned, although the length of the delay may affect in certain cases the' actual quantum of damages. The object of using the telegraph is its capacity for almost instantaneous transmission of intelligence, and if -this purpose is defeated there is m> consideration for the increased cost of its use. In every respect except that of time, the postal service, with its small cost and greater secrecy, would be preferable.

In the case at bar it is admitted that the telegram was not promptly delivered, but the defendant insists that its nondelivery was not due to any negligence on its part, but solely to its failure to find the addressee, after every reasonable effort to do so. It does not set up any contractual limitations of liability. In fact it appears that the plaintiff addressee lived within the free-delivery limits of Gaffney. The usual printed terms of the company are not set out in the record, but they are on the bach of all blanks of the defendant company, and can be found on page 436 of Oroswell’s Law of Electricity. The only difference appears to be that the author has omitted the words “any message” in line 27 of the form after the word “forward.” The clause under consideration is as follows: “Messages will be delivered free within the established free-delivery limits of the terminal office. Eor delivery at a greater distance, a special charge will be made to cover the cost of such delivery.” By its very terms this provision does not apply to the office from which the message is sent. It may be further noted that the company does not say that the message will not be delivered beyond such limits, but that “a special charge will be made to *311 cover the cost oí such delivery,” which would seem to clearly imply that it would be delivered. No fixed limit of distance nor definite sum is specified, and it is difficult to see how the sender can be presumed to know either in the absence of information from the company.

Many of these printed terms have been held void as contrary to public policy, but even where valid they must be reasonably construed. Brown v. Telegraph Co., 111 N. C., 187; Sherrill v. Telegraph Co., supra; Dowdy v. Telegraph Co., 124 N. C., 522; Laudie v. Telegraph Co., Ibid, 528.

The following comment by the Court in Telegraph Co. v. Robinson, 13 Pickell, 97 Tenn., 638, is peculiarly appropriate: “A rule merely made without notice to- those who are to be affected by it, and without exaction of conformity to it, and which is not in fact observed by the company itself, can not; as a protection against liability, be laid away in the secret consciousness of the agents of the company, unknown and unobserved^ until the occasion arises to apply it, on account of liability incurred by failure to deliver.”

Tn the ease at bar this limitation, of free delivery limits is invoked only to excuse the agent at the terminal office from not informing the agent at tire office of transmittal that the message has not been or could not be delivered. This becomes purely a question of reasonable diligence, and we think is answered by tire fact that there was a telephone from the depot, where the office of the defendant appears to be, to the home of the sender. It would seem that ordinary care would require the agent at Lineolnton to step- to the telephone and notify the sender that a message of such vital interest had not been delivered. This he doubtless would have done if he had been informed of that fact by the agent at Gaffney. We think that it is the duty of the company in all cases where it is practicable to do so to- promptly inform the sender of a *312 message that it can not be delivered. While its failure to do so may not*be negligence per se, it is clearly evidence of negligence. In many instances, by such a course, the damage could be greatly lessened, if not entirely avoided. A better address might be given, mutual friends might be communicated with, or even a letter might reach the addressee. In any event, the sender might be relieved from great anxiety, and would know what to expect. Moreover, it would lend to’ show diligence on tire part of the company.

The question as to what would have been the legal effect if the message had been left with the company in whose care it was-addressed, does not arise. The messenger testifies that he went into the office of the Gaffney Cotton Mills and asked Ward law if Hendricks was there, and was told to go and look. He did not show the message to Wardlaw or anyone else at the mill, nor did he inform them that it w'as directed in their care. In spite of a hypothetical answer of the witness Ward-law, we can not suppose that if he had been informed of the nature of the telegram addressed to one of his employees in his care, he w'ould not have taken some little trouble to have aided in its delivery. The messenger merely asked the postmaster if he knew' the plaintiff, but did not ask him if the plaintiff received his mail at that office. These facts, soi far from exonerating the defendant, tend to prove its negligence, but as there was some conflicting testimony, as well as other material facts, the matter was properly submitted to tire jury, who in all cases have the constitutional right to pass upon the weight and credibility of the testimony. What is due diligence or reasonable care> the phrases in this case being practically synonymous, are nearly always, if not always, mixed questions of law and fact. Difficult of accurate definition and still more so of determination, they depend upon the relative facts of each case -and come peculiarly within the *313 province of the jury. Frequently the question of negligence depends not so much on any one fact as on a combination of facts, and therefore the singling out of any one fact which directly or inferentially is made the turning point in the case might of itself be error.

There does not appear to have been made any effort to deliver the second telegram. As we see no error in the trial of the case the judgment below is

Affirmed.