Ellison v. Western Union Telegraph Co. ( 1913 )

This and the case of Harrison v. Telegraph Co., involving practically the same questions and arising out of the same transaction, were consolidated in this Court and argued together.

There was evidence for the plaintiffs, Aline Ellison and Annie Harrison, that they were adopted by Sue Wright as her daughters, and (8) reared and educated by her, Annie being her niece and Aline her husband's niece. They lived in her home from a very tender age — 3 and 7 years respectively — and were treated as her children and lived there as sisters. In January, 1911, Sue Wright became very ill, and Aline went from her home in Jamesville to her foster mother's home in Plymouth to see her. As her condition was improved on 25 January, 1911, Aline returned to her home in the afternoon of that day, and arrived at Plymouth about 4:30 o'clock the same day, the two places being only 15 miles apart. Shortly after she left, Sue Wright grew worse, and died about 5 o'clock. A little after 5 o'clock p. m. Annie Harrison asked Bettie Ellis, wife of Henry Ellis, to go to the defendant's office and send this message to Aline Ellison: "Sue Wright is dead. Come on the night train." Bettie Ellis asked her husband, who was employed at the railroad station, to give the message to the operator, who was also agent of the railroad company, and he did so at once. This was about 5:30 p. m. The message was not sent that evening, and not until after 10 o'clock the next morning, and was not received by Aline Ellison until 12 o'clock, at the time she heard the mill whistle blow for that hour. She left by the first train, but did not reach Plymouth until 4:30 p. m. If the message had been sent when it was received by the operator, on that afternoon, she would have received it in time to have taken the 7 o'clock p. m. train, and would have reached Plymouth at 7:30 p. m. on 25 January, and she would have taken that train if she had received the message in time. There was an understanding and arrangement between Annie and Aline that the former would wire the latter if their foster mother's condition grew worse, and that Aline would come to Plymouth, but there was no evidence that this was known to the defendant's operator, except such notice of it as he could derive from the message. The agent knew that Annie Harrison lived with Sue Wright.

The agent, J. A. Griffin, testified that he accepted the message after office hours, promised to send it as a matter of accommodation if he found that it could be sent that evening, but that the office at Plymouth closed at 6 o'clock p. m., and he might not be able to (9) get an answer from the operator, though he would try to do so. He tried the wires and the telephone connecting the two places, but failed to get any response. The next morning he told Henry Ellis that he would destroy that message and send a new one, which he did, it being the one received by Aline Ellison at 12 o'clock the next day. He was both agent of the railroad company and operator of the telegraph company, but as operator he was not required to be in his office after 6 o'clock p. m., though as agent of the railroad company he was required to be in his office until 7:30 o'clock p. m., when the train arrived from Plymouth, and the agent of the railroad company at Plymouth, who was also telegraph operator, was required to be in his office until 7 o'clock p. m., when the train from Rocky Mount leaves Plymouth for Jamesville. J. A. Griffin denied that he knew where Annie Harrison lived. This witness was not corroborated by Henry Ellis, though the latter did not positively contradict him, but merely stated that he did not recollect that the transaction was as related by the operator. The railroad and telegraph offices were the same.

The defendant read in evidence the seventh section of the Harrison complaint, in which it is alleged that the plaintiff sent the message after 4 o'clock p. m. on 25 January, and told the defendant's agent of the facts and agreement between her and Aline Ellison, and requested the agent to send the message to her at Jamesville, notifying her of the death of Sue Wright, and that she paid the toll for the same. But this is not important, as the case is viewed by the Court.

It is stated in the record, "that the court charged the jury fully on the law of the case, and no exception was taken to the charge." At defendant's request, the court gave the following instructions:

"1. The plaintiff is not entitled to recover any damages because of any delay in getting the coffin, or casket, from Jamesville, and the jury will not consider this in making up their verdict on the second issue.

"2. The plaintiff cannot recover any damages because of the (10) offensive condition of the corpse at or before the burial, and the jury will not consider this in making up their verdict as to damages.

"3. There is no evidence that the defendant had any notice of any arrangement between plaintiffs that Aline Ellison should furnish coffin, and no damages can be given by the jury on account of that.

"4. Henry Ellis, in having the message prepared and offered for transmission, if you find he did so, was the agent of the plaintiff, and not of the defendant, and defendant cannot be held responsible because of any damage or hurt suffered by his negligence, if you find he was negligent.

"5. The jury can give no damages by way of punishment to the defendant."

The defendant, also in writing, further requested the court to charge the jury as follows:

"6. Upon all the evidence introduced, the jury should answer the issues in favor of defendant."

This instruction the court declined to give, and defendant excepted.

There was a verdict for the plaintiff in each case, and judgment having been entered thereon, defendant appealed. After stating the case: It appears that there was sufficient evidence of negligence on the part of the defendant in failing to send the message on the afternoon of 25 January. It was shown that both agents were in their offices until 7 o'clock p. m., and while the operator at Plymouth testified that he called the office at Jamesville and failed to get any response, this was not conclusive upon the jury, and they could find upon all the facts and circumstances that no effort was made to send the message. It is a suspicious circumstance, which they might consider, that the agent at Jamesville was not called by the defendant to corroborate the Plymouth operator. The burden was upon the defendant to account for the delay, after the receipt of (11) the message for transmission was shown. It was solely within its power to do so, and there must be a presumption of negligence raised by so long a delay, in the absence of any sufficient or satisfactory explanation. Hoaglin v. Telegraph Co., 161 N.C. 390. It was held inSherrill v. Telegraph Co, 116 N.C. 655, that, "When the plaintiff shows the delivery of a message to the telegraph company, 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." citing Thompson on Electricity, sec. 274, and cases; Bartlett v. Telegraph Co., 16 Am. St. Rep., 447; Pearsall v. Telegraph Co., 21 Am. Rep., 662.

It is not necessary that we should discuss the evidence, as there was plainly enough to satisfy the jury, if they accepted it as true, that the defendant had negligently delayed to send the message, and that this prevented the plaintiff, Aline Ellison, from leaving on the earlier train.

The court properly confined the assessment of damages to mental anguish suffered after the message was actually delivered to her. There was affirmative evidence that mental anguish had been caused to both plaintiffs by the negligence of the defendant.

In Harrison v. Telegraph Co., 143 N.C. 147, we stated the rule to be that there can be no recovery of damages for mental suffering in such cases, unless it is shown "that the defendant could reasonably have foreseen from the face of the message that such damages would result from a breach of its contract or duty to transmit correctly, or that it had extraneous information which should have caused it to anticipate just such a consequence from a neglect of its duty towards the plaintiff."

The message in this case was of a character sufficient to inform the defendant of its great importance, and that mental anguish would probably result from its negligence in failing to transmit it with reasonable promptness. "It has repeatedly been decided by this Court, in cases where the relationship of the parties was not disclosed (12) and the special purport of the message could not possibly have been understood, that it was not necessary for the company to know the relation between the sender and sendee from the terms of the message, or to know anything more than that the message is one of importance, and that this should always be inferred from the fact that it relates to the illness or death of a person. When this is the case, it is sufficient to put the company on notice that a failure to deliver will result in mental suffering, for which damages may be recovered. Lyne v. Telegraph Co.,123 N.C. 129; Sherrill v. Telegraph Co., 109 N.C. 527; Hendricks v.Telegraph Co., 126 N.C. 310." We further said in the Bright case: "The law does not regard so much the technical relation between the parties, or their legal status in respect to each other, as it does the actual relation that exists and the state of feeling between them. It does not raise any presumption of mental anguish when there is no relation by blood, but if mental suffering does actually result from the failure to deliver a message where there is only affinity between the parties, it may be shown and damages recovered." But here, as we have shown, there was actual proof of mental anguish, and the case was submitted to the jury upon that proof. Not only is the Bright case an authority sustaining the validity of the rulings in regard to mental anguish, but Harrison v. Telegraph Co., 143 N.C. 147, is directly in point, and there we said: "There is no presumption of mental anguish growing out of the relation of stepmother and son; but under our decisions it is a fact the plaintiff may prove, if she can, to the satisfaction of the jury, for the state of the mind is as much susceptible of proof as the condition of the stomach." See, also, Cashion v. TelegraphCo., 123 N.C. 267. In our case there was blood relationship between the plaintiff Annie Harrison and the deceased, but none between the latter and Aline Ellison, and if the relation the parties actually sustained did not raise any presumption of mental anguish, the proof supplied its place.

We have seen in Sherrill v. Telegraph Co., supra, cited already for another purpose, that the prepayment of the charge for sending (13) the message is not a condition precedent to the right of recovery. The agent could have demanded payment of the toll in advance, but not having done so, and electing to trust the sendee for the payment of it, the defendant cannot now avail itself of his failure to do so as a defense to the action.

The right to prepayment was clearly waived. Miller v. Telegraph Co.,159 N.C. 502.

The defense that the message was not tendered to the defendant's agent during office hours is equally untenable. The agent received it and undertook, and actually attempted, as he testified, to send it over the wires and by telephone. It did not occur to him, at the time he was doing so, that the office hours had closed and he was not bound to transmit the message. If the provision as to office hours was available to defendant, under the circumstances of this case, it was waived by the conduct of its agent. Bright v. Telegraph Co., supra; Hood v. TelegraphCo., 135 N.C. 622; Carter v. Telegraph Co., 141 N.C. 374. We held inCarter's case, supra: "Where a message on its face appears to be urgent, the fact that it is offered for transmission after office hours will be no defense to the company if the agent accepted it without reserve," or, in other words, without insisting on the exemption from the service at the time. And in the Suttle case it was said: "When the agent of a telegraph company receives a message for transmission, and undertakes with the sender to deliver it at a time not within its reasonable office hours at its destination, the benefit of the office hours is waived."

If the agent was not able to transmit the message, it was his plain duty, under the law, as we have so often declared it, to notify the sender, Annie Harrison, of the fact, so that she could have taken steps to communicate to her foster sister in some other way. Its failure to do so was evidence of negligence. Hendricks v. Telegraph Co., 126 N.C. 311;Hood v. Telegraph Co., 135 N.C. 622; Cogdell v. Telegraph Co., ibid., 431; Woods v. Telegraph Co., 148 N.C. 61; Hoaglin v. Telegraph Co.,161 N.C. 395.

It was no excuse for the delay in sending the message that its operator was also agent of the railroad company and had other duties to perform for it. If the defendant employs an agent on joint account (14) with the railroad company, it must abide the consequences of a conflict of duty upon the part of the agent. The contract of the telegraph company is for prompt delivery. It is no defense that its agent had other duties to attend to as agent for another company, any more than it would be an excuse that it had so much business of its own that one agent or the messengers it had could not promptly and properly handle it. In both cases the defendant is negligent if it does not have sufficient employees to discharge properly the duty it contracts to do and is chartered and paid to do. Kernodle v. Telegraph Co., 141 N.C. 438;Mott v. Telegraph Co., 142 N.C. 532; Carter v. Telegraph Co.,supra; Dowdy v. Telegraph Co., 124 N.C. 522.

We cannot assent to the position that there was no evidence of the agent's acceptance of the message for transmission — even his unconditional acceptance of it for that purpose. It was for the jury to settle any conflict in the evidence, and they have done so in this instance favorably to the plaintiffs. Nor can we sustain the motion for nonsuit, for there was ample evidence, if found to be true, upon which to base the verdict.

The court carefully distinguished, in its charge, between mental anguish and mere grief or regret at the death of plaintiffs' relative and foster mother, and its instructions are fully supported, in this respect, by Davisv. Telegraph Co., 139 N.C. 83, and Hancock v. Telegraph Co., 137 N.C. 497, cases relied on by the defendant.

The evidence as to the ability of Annie Harrison to purchase a coffin, and all the testimony on that subject, if it was erroneously admitted, was fully eliminated by the court in its charge, and the error, if any, was cured.

It was competent to show the arrangement between Annie Harrison and Aline Ellison before the latter left Plymouth, that she should be notified by wire if Sue Wright should become worse, not as charging defendant with any knowledge of it, for there was no such evidence, but as tending to show that Aline Ellison would have come to Plymouth on the 25th of January if she had received the message.

(15) The charge is not in the record, and we must presume, in the absence of it, that it correctly stated the law.

Upon a review of the entire case and a careful consideration of the several exceptions, we have not been able to discover any error in the trial.

No error.

BROWN, J., did not sit.

Cited: Harrison v. Tel. Co., post, 18; Griswold v. Tel. Co., post, 175;Betts v. Tel. Co., 167 N.C. 79; Miller v. Tel. Co., ib., 316; Webb v.Tel. Co., ib., 486; Medlin v. Tel. Co., 169 N.C. 505; Howard v. Tel. Co.,170 N.C. 499.