Woods v. Western Union Telegraph Co. , 148 N.C. 1 ( 1908 )

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, 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, and it has been since approved in numerous cases. Laudie v. Telegraph Co., 126 N. C., 431; Rosser v. Telegraph Co., 130 N. C., 251, and Cogdell v. Telegraph Co., 135 N. C., 431, where the cases upon this question are collected. The Court said, in Rosser v. Telegraph Co., supra, that “All 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, 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. 0. 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, bad used due diligence to find tbe addressee. But tbe case of Lyne v. Telegraph Co., 123 N. C., 129, would seem to be directly in |ooint and to charge tbe defendant with negligence, at least prima facie, as tbe facts now appear in this case. It was there held to be tbe duty of tbe defendant to inquire at tbe post-office for tbe residence of tbe sendee, no street address having been given. Tbe rule is that tbe defendant must make reasonable inquiry and exercise that degree of care which a prudent person would use under tbe circumstances in tbe effort to deliver tbe message. In this case it seems that tbe defendant made no attempt to deliver tbe message. Tbe misdirection did not excuse this omission on its part. If tbe messenger boy bad inquired at No. 38 Depot Street be would have been told, it is true, that Jay Woods did not live there, but be might have acquired information which would have led to tbe discovery of bis residence, as be lived close by. Tbe entry in tbe city directory was also some evidence to be submitted to tbe jury upon the issue of negligence. Tbe slight variation from tbe 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 tbe post-office. Lyne v. Telegraph Co., supra. Indeed, tbe defendant, so far as tbe case shows, did not even send out a messenger boy with tbe telegram for tbe purpose of finding tbe sendee. If due search bad been made for him and be 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; Cogdell v. Telegraph Co., 135 N. C., 431. In any view of tbe case there was evidence of negligence proper to be considered and passed upon by tbe jury, and tbe judgment of nonsuit was therefore erroneous.

Tbe fact that tbe plaintiff did see bis brother’s body before tbe burial is no defense to tbis action. Tbe defendant bas failed to perform a plain duty wbicb it owed to bim, and tbis shows actionable negligence. Hendricks v. Telegraph Co., supra; Cogdell v. Telegraph Co., supra; Hocutt v. Telegraph Co., 147 N. C., 186. Nor will tbe objection bold that tbe message w7as sent from Knoxville, Tenn. There is no proof of tbe law of that State in respect to tbe recovery of damages for mental anguish in a case like tbis one. We have held that tbe breach of tbe duty of tbe defendant in delivering a message is a “breach of tbe law, and for this breach an action lies, founded on tbe common law, wbicb action wants not tbe aid of a contract to support it. Green v. Telegraph Co., 136 N. C., at p. 492; Cashion v. Telegraph Co., 124 N. C., 459; Cogdell v. Telegraph Co., 135 N. C., 431. “In tbe absence of proof to tbe contrary, tbe courts of our State will presume tbe common law to prevail in a sister State.” 6 Am. and Eng. Enc. of Law (2d Ed.), 282; Griffin v. Carter, 40 N. C., 413; Brown v. Pratt, 56 N. C., 202; Gooch v. Faucett, 122 N. C., 270; Terry v. Robbins, 128 N. C., 140; Bank v. Carr, 130 N. C., 479. “Tbe statute and common law of our sister States are facts to be proven, as any other facts in a cause, by the party who seeks to take advantage of any difference that may exist between such laws and our own.” Bremhill v. Van Campen, 8 Minn., 13; Peterson v. Bank, 32 N. Y., 21. Tbe rule upon tbis subject is well expressed in Carpenter v. Railway, 72 Me., 388: “Tbis brings us to tbe inquiry whether tbe ruling at tbe trial can be sustained upon tbe ground that there was n<? evidence of what tbe law of Ganada was. We think not. Undoubtedly tbe case was to be tried in accordance with the law of tbis State, in tbe absence of proof of any other law. Tt is a well-settled rule,’ says tbe Court of Appeals of New York, 'founded on reason and authority, that tbe lex fori, or, in other words, tbe laws of tbe country to whose courts a party appeals for redress, furnishes in all cases prima facie tbe rule of decision.; and if either party wants tbe benefit of a different rule or law (as, for instance, tbe lex domicilii, lex loci conlraclus, or lex loci rei sites), be must aver and prove it.r Tbe courts of a country are presumed to be acquainted witb tbeir own laws, but those of other countries are to be averred and proven, like other facts of which courts do not take judicial notice.’ ” Monroe v. Douglas, 5 N. Y., 447. Wigmore, in his work on Evidence, par. 2536, says that in reality there is no presumption of what the law is in another State, but' the true process is merely that of refusing to recognize a presumption that a foreign State has a law different from that of the lex fori.

The jDlaintiff cannot recover any damages because he saw his brother’s body after decomposition had advanced so far that his features could “hardly” be recognized. We have held at this term that this is not a proper element of damages. Kyles v. Railway, 147 N. C., 394.

New Trial.