Miller v. Western Union Telegraph Co. , 167 N.C. 315 ( 1914 )

This is an action to recover damages for mental anguish, the plaintiff being the sender of the telegram set out in Hedrick v. Tel. Co., ante, 234, where the facts are fully stated. The only exception is to the evidence of the plaintiff that the agent of the defendant, who wrote the telegram, was told that the address of H. F. Hedrick was "14 Street off Liberty Street," instead of "14 Liberty Street," as written in the telegram.

(316) There was a verdict and judgment in favor of the plaintiff, and the defendant appealed. The argument of counsel for defendant is directed to the effect of the evidence admitted over his objection rather than to its competency, but we must assume that his Honor instructed the jury properly as to how the evidence should be considered and its bearing upon the case, as the charge is not a part of the case on appeal and there is no exception to it.Ellison v. Tel. Co., 163 N.C. 14.

If, however, it be conceded, as contended by the defendant (and it must be understood that the Court does not assent to the proposition), that the agent of the telegraph company became the agent of the plaintiff when he wrote the message for him, the evidence would not for this reason be incompetent.

When the telegram was received at Winston with an incorrect street address on it, the defendant was not absolved from making further inquiry, nor could it rely upon the mistake and cease all efforts to deliver. Kivettv. Tel. Co., 156 N.C. 306.

It became its duty, among others, to send a service message asking for a better address (Griswold v. Tel. Co., 163 N.C. 174), and if it had done so the evidence tends to prove that the agent at Lexington, who would have received the message, had the information necessary to give the correct address.

If the operator at Lexington was the agent of the plaintiff in writing the message, he was also agent of the defendant, and notice to an agent is notice to the principal, except when engaged in a transaction antagonistic to the principal or where it is against his interest to disclose the information received. Bank v. School Committee, 118 N.C. 386.

In this case he owed the duty to the plaintiff and the defendant, and it was in his own interest to correct the message, if he had made a mistake in writing the address, and notice to him of the correct address was notice to the defendant.

No error.

(317)