Miller v. . Telegraph Co. , 159 N.C. 501 ( 1912 )

The facts are sufficiently stated in the opinion of the Court by MR. CHIEF JUSTICE CLARK. This is an action for failure to deliver promptly a telegram. It was in evidence that at 4 p.m., Saturday, 19 November, 1910, a telegram from Norfolk, Va., addressed to "Woodie Miller, Edenton, N.C." was delivered at his residence in that place, announcing the sudden death of his brother, in Norfolk, and asking plaintiff to "come at once." His wife at once requested the company to forward it to her husband. "care Everett's Hotel, Jacksonville, Fla.," and guaranteed the charges. The defendant accepted the message, but did not deliver it. His wife sent a night letter that night to her husband, asking if he had received the message. He received this the next day about 10 o'clock a. m. He thereupon went to the telegraph office in Jacksonville and was handed the undelivered telegram, which was directed to "Wood C. Miller, care Everett's Hotel." The plaintiff testified that if he had received the telegram at any time before 8 p.m., 19 November (which was four hours after the message was handed in to the office in Edenton), he could and would have reached Norfolk Sunday at 5:30 P. M., in time to have attended the funeral; that he left on the first train after he had actually received the message, but arrived in Norfolk too late to attend the funeral. The plaintiff further testified that the clerk at the Everett Hotel had known him a long time as T. W. Miller or Woodie Miller; that he had been at the hotel on this occasion for several days and was registered as T. W. Miller. The defendant offered no evidence.

It was an error to grant the motion for a nonsuit. There is an unbroken line of cases from Hendricks v. Telegraph Co., 126 N.C. 304, andCogdell v. Telegraph Co., 135 N.C. 431, down to the present, that on proof of the delivery of a message to a telegraph company and payment of the charges, or the acceptance of the message without such payment, and of failure to deliver to the sendee in reasonable time, (503) there is prima facie proof of negligence, and the burden is upon the company to prove that it made all reasonable effort to deliver the message, and that, upon failure to find the sendee, it wired back a service message for a better address. Here the company showed no effort to deliver, nor any attempt to send a service message, nor any inquiry for sendee at Everett's Hotel, nor indeed any attempt to deliver even when through the night letter from the plaintiff's wife it had notice that the sendee was at the hotel in Jacksonville. Though this last was directed to T. W. Miller, it was notice that a message of importance which had been sent from Edenton, N.C. to a man named Miller, care Everett's Hotel, had not been delivered.

It seems probable that the message was changed from "Woodie Miller" to "Wood C. Miller" by a phonetic mistake as in Cogdell v. Telegraph Co.,supra. But however that may be, the defendant has not met the burden of proof east on it by reason of its failure to deliver the message in apt time.

The judgment of nonsuit must be

Reversed.

Cited: Ellison v. Telegraph Co., 163 N.C. 13.