Hobbs v. Western Union Telegraph Co.

CoNNOR, J". It is not contended on tbis appeal tbat there was any evidence at tbe trial of tbis action tending to show negligence on tbe part of tbe defendant in transmitting tbe telegram addressed to tbe plaintiff from Monroe to Lexington. All tbe evidence showed tbat tbe telegram was filed at defendant’s office in Monroe at 9 :16 a.m. and was received at defendant’s office in Lexington at 9 :23 a.m., on tbe same day. Tbe defendant fully performed its contract with tbe sender and its duty to tbe sendee of tbe telegram with respect to its transmission from Monroe to Lexington. On tbe facts shown by all tbe evidence, there is and can be no contention to tbe contrary. Tbe telegram, however, although received by defendant at its office in Lexington at 9 :23 a.m., on 1 September, 1932, was not delivered to tbe plaintiff until 12 :30 p.m. on 2 September, 1932. There was a delay of more than twenty-four hours in tbe delivery of tbe telegram after its receipt by tbe defendant at its office in Lexington. Nothing else appearing in tbe case, such delay would constitute at least evidence of negligence on tbe part of tbe defendant, with respect to tbe delivery of tbe telegram, sufficient to carry tbe case to tbe jury, and if unaccounted for by tbe defendant would entitle tbe plaintiff to a verdict on which tbe defendant would be liable to tbe plaintiff for tbe damages sustained by him and resulting from tbe negligence of tbe defendant. It is well settled tbat where a telegraph company has received a telegram for transmission and delivery to tbe sendee, and after its prompt transmission to its terminal office, has failed to deliver tbe telegram to tbe sendee within a reasonable time, because of its failure to exercise due diligence to make a prompt delivery, tbe company is prima facie liable to- tbe sendee for any damages be has sustained which resulted from tbe unreasonable delay to deliver tbe telegram to him. Hendricks v. Telegraph Co., 126 N. C., 304, 35 S. E., 43. In such case tbe burden is on tbe defendant, if it denies liability, to offer evidence to rebut tbe prima facie case for tbe plaintiff. Tbe burden of tbe issue involving liability, however, remains on tbe plaintiff. Such burden is not shifted to tbe defendant, who may or may not offer evidence to rebut tbe prima facie case made by tbe evidence offered by tbe plaintiff. Speas v. Bank, 188 N. C., 524, 125 S. E., 398. Where all tbe evidence offered by tbe defendant rebuts tbe prima facie case made by tbe evidence offered by [317] tbe plaintiff, and there is no controversy between the parties as to the facts shown by the evidence, the defendant is entitled to an instruction of the court to the jury that if the jury shall find the facts to be as all the evidence tends to show, they should answer the issue involving the liability of the defendant to the plaintiff, in the negative. McIntosh Prac. & Pro., p. 632; Bank v. Nolle, 203 N. C., 300, 165 S. E., 722; Somersette v. Stanaland, 202 N. C., 685, 163 S. E., 804; Reinhardt v. Ins. Co., 201 N. C., 785, 161 S. E., 528. This principle is not in conflict with the right to trial by jury of controverted issues of fact but affords parties to the action the protection of the law, when there is no controverted issue of fact. In the instant case, the address of the sendee as shown by the telegram delivered by the sender to the defendant at Monroe, and received by the defendant at Lexington, showed that the plaintiff, Noah Hobbs, and the person in whose care the telegram was to be delivered, J. S. Deal, both lived on Rural Free Delivery Route No. 5, out of Lexington. All the evidence at the trial showed that defendant’s‘manager at Lexington did not know Mr. Hobbs or Mr. Deal, and did not know where either of them lived on Route No. 5. In such case, what was the duty of defendant’s manager at Lexington with respect to the delivery of the telegram to the sendee? The address given in the telegram showed that both Mr. Hobbs and Mr. Deal lived beyond the free delivery limits of the defendant at Lexington, and probably beyond the corporate limits of the city. It was a reasonable inference and the evidence shows such to be the fact, that the sender of the telegram knew these facts, and had given the defendant the only address of the sendee which she knew. In such case, the principle that when the sendee of a telegram cannot be located by the agent of the company, because of an insufficient or erroneous address, given by the sender, it is the duty of the agent to ask, by wire, for a better address, is not applicable. It was manifestly the duty of defendant’s manager at Lexington to use reasonable diligence to locate Mr. Hobbs, or Mr. Deal, at the address given by the sender of the telegram. He undertook to perform this duty by the use of the telephone, and it was only after he had been unable to locate either Mr. Hobbs or Mr. Deal, by telephone, that he mailed the telegram to the address given by the sender. The telegram was delivered by mail to J. S. Deal, and by his wife to Mr. Hobbs. Whether the defendant’s manager would have been justified in mailing the telegram before he used the telephone for the purpose of locating Mr. Hobbs, or Mr. Deal, under the principle on which Gainey v. Telegraph Co., 136 N. C., 262, 48 S. E., 653, was decided, need not be decided. Having failed to locate either Mr. Hobbs or Mr. Deal by telephone, he was justified in using the mail for the [318] delivery of tbe telegram to tbe address given by tbe sender. On tbe facts shown by all tbe evidence, be was not required to notify tbe sender tbat tbe telegram could not be delivered at tbe address given by ber by special messenger. He bad a right to presume tbat she knew this, when she delivered tbe telegram to tbe defendant at Monroe. Tbe intimation of tbe court as to tbe instruction which it would give tbe jury in this case is supported in principle by tbe decision in Gainey v. Telegraph Co., supra, and is in accord with tbe decision in Garner v. Telegraph Co., 100 S. C., 302, 84 S. E., 829. In tbat case it was held tbat tbe addressing of a telegram to tbe addressee, “R. E. D. 1,” is a direction to tbe telegraph company to use tbe mail for delivery, and tbat tbe company was not liable for delay thereby occasioned. See 62 C. J., 169. Tbe judgment in tbe instant case is Affirmed.