CONNOR, J., dissents. Brown, J., concurs in dissenting opinion.
This action was brought to recover damages for failing to deliver a telegram. It appears that on 27 July, 1907, at 3 o'clock P. M., Elvin Willis, a brother of the plaintiff, delivered to the defendant, at Beaufort, N.C. for transmission to the plaintiff, C. S. Willis, who lived in Richmond, Va., the following message: "C. S. Willis, 923 East Marshall Street, Richmond, Va. Papa died at 10:30 A. M. Elvin." The message was not delivered until 10 o'clock A. M. on 28 July, 1907. It was received by the defendant's operator at Richmond at 3:30 P. M. on the day it was sent. The message was sent from Beaufort by way of Newport, and relayed at the latter place. When received by the defendant's operator at Newport, the address had been changed from "923 Marshall Street" to "23 Marshall Street," and the evidence tended to show that this change was made after the message had been received by the operator at Beaufort — in other words, on the line between Beaufort and Newport. The defendant contended that it was not liable by reason of this fact, as it did not own or operate that line, but that it was owned and operated as an independent line by Thomas Duncan, and there was evidence in the case to sustain this contention. It appears, though, that in the complaint, filed at Fall Term, 1907, the plaintiff alleged that the defendant owned and operated the said line as a part of its line between Beaufort, N.C. and Richmond, Va., and that it undertook to transmit the message from Beaufort to Richmond. These allegations were made in sections 1, 2 and 3 of the complaint, and they were not denied in the answer, filed at Fall Term, 1907, though the other allegations of the complaint were. At Fall Term, 1908, by leave of the court, the defendant filed an amended answer, in which the allegations as to the ownership and control of the telegraph line from Beaufort to Newport were denied, and evidence was introduced at the trial which tended to show that (320) said line was not owned or controlled by defendant, but by Thomas Duncan. The plaintiff put in evidence the complaint and the first answer for the purpose of showing that the defendant did own and control the line from Beaufort to Newport. The defendant requested the court to charge the jury "That, if they believed the evidence, the line from Beaufort to Newport was not owned and operated by the defendant, and it would not be liable for any error which occurred on that line." This instruction the court declined to give, but charged that "It is a question for the jury to find, from the greater weight of the evidence, whether the line from Beaufort to Newport was owned and operated by the defendant, and if the jury found that the line from Beaufort to Newport was not owned or operated by the defendant it would not be liable for any error that may have occurred on that line,
the burden of proof as to who owned the line from Beaufort to Newport being on the plaintiff." Defendant excepted.
The defendant requested the court to charge the jury that the defendant would not be responsible for any error that may have occurred in the transmission of the telegram before the same reached its line; and if the jury should find from the evidence that the telegram was delayed by reason of an error in the transmission and change of address before it reached the line of the defendant, then the jury would answer the first issue "No." The court, in response to the prayer, instructed the jury as follows: "The defendant would not be responsible for any error that may have occurred in the transmission of the telegram before the same reached its line. If the jury should find from the evidence that the telegram was delayed by reason of an error in transmission and the change of the address before it reached the line of the defendant, and such delay was the cause of the failure of the plaintiff to receive the message in time to have attended the funeral, then they will answer the first issue `No.'"
The evidence tended to show that when the message was received at Richmond, the operator handed it to a messenger for delivery to the sendee, and that he used a bicycle in delivering messages. The messenger, who had nine other messages to deliver, went to the place described in the message, No. 23 East Marshall Street, and also to 23 West Marshall Street, and inquired for C. S. Willis, but found that he (321) did not live at either place. He also inquired at each house as to where Willis could be found, but received no information. The messenger returned to the office at 6 o'clock P. M., the same day, as soon as he had delivered the other messages, and handed the message for Willis to the operator, to whom he reported the facts. The operator examined the city directory, and not finding Willis' name, inquired of other persons by that name about him. Failing to get any information, he wired back for a better address, but his service message was not received at Newport in time to wire to Beaufort and receive an answer before the time for closing the office, which was 9 o'clock P. M. A message was received at Newport from Beaufort giving the correct address that night, but after office hours, and it was not forwarded until the next day. The message from Newport to Richmond had to be sent via New Bern and relayed at that place, as the main or direct line to Richmond could not be used, "it being in trouble," as the operator testified. If it had been in order, the corrected message could have been sent to Richmond that night. It could not be sent by New Bern, as the office there had been closed for the night. There was evidence that no inquiry was made at the postoffice at Richmond for C. S. Willis, who lived at 923 Marshall Street, nor was there any further search for him. The night clerk at
Richmond mailed a postal card to Willis. The plaintiff could have left Richmond and attended the funeral of his father if the message had been delivered to him at any time before 8 P. M. on the day it was sent, and would have left by the first train.
The court charged the jury as to what would constitute negligence in failing to deliver the message after it was received by defendant, substantially, as follows: If the defendant did not operate the Beaufort and Newport line and the jury should find that an error in the message occurred on that line, and at the time the message was received by defendant company it had an incorrect address and the one at which defendant undertook to deliver the telegram, then the jury will consider whether or not the defendant company was guilty of negligence after the telegram reached its line at Newport; and if in the exercise of (322) ordinary care and diligence the defendant could have gotten the correct address and delivered the telegram to plaintiff, so that he could have left Richmond on 27 July and reached home in time for the funeral, and defendant failed to do so, it was guilty of negligence, and the jury will answer the first issue "Yes." Defendant excepted to this instruction.
There was evidence as to plaintiff's mental anguish and damages.
The court having refused to charge, as requested, that there was no evidence of any negligent delay in transmitting and delivering the telegram, and that the jury should answer the first issue "No," the defendant excepted.
At the close of the testimony the defendant moved to nonsuit the plaintiff. The motion was refused, and the defendant excepted.
There was a verdict for the plaintiff, upon which judgment was entered, and the defendant appealed.
The plaintiff alleged in his complaint that the telegram was delivered to the defendant at Beaufort, N.C. for transmission to him at Richmond, Va.
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CONNOR, J., dissents. Brown, J., concurs in dissenting opinion.
This action was brought to recover damages for failing to deliver a telegram. It appears that on 27 July, 1907, at 3 o'clock P. M., Elvin Willis, a brother of the plaintiff, delivered to the defendant, at Beaufort, N.C. for transmission to the plaintiff, C. S. Willis, who lived in Richmond, Va., the following message: "C. S. Willis, 923 East Marshall Street, Richmond, Va. Papa died at 10:30 A. M. Elvin." The message was not delivered until 10 o'clock A. M. on 28 July, 1907. It was received by the defendant's operator at Richmond at 3:30 P. M. on the day it was sent. The message was sent from Beaufort by way of Newport, and relayed at the latter place. When received by the defendant's operator at Newport, the address had been changed from "923 Marshall Street" to "23 Marshall Street," and the evidence tended to show that this change was made after the message had been received by the operator at Beaufort — in other words, on the line between Beaufort and Newport. The defendant contended that it was not liable by reason of this fact, as it did not own or operate that line, but that it was owned and operated as an independent line by Thomas Duncan, and there was evidence in the case to sustain this contention. It appears, though, that in the complaint, filed at Fall Term, 1907, the plaintiff alleged that the defendant owned and operated the said line as a part of its line between Beaufort, N.C. and Richmond, Va., and that it undertook to transmit the message from Beaufort to Richmond. These allegations were made in sections 1, 2 and 3 of the complaint, and they were not denied in the answer, filed at Fall Term, 1907, though the other allegations of the complaint were. At Fall Term, 1908, by leave of the court, the defendant filed an amended answer, in which the allegations as to the ownership and control of the telegraph line from Beaufort to Newport were denied, and evidence was introduced at the trial which tended to show that (320) said line was not owned or controlled by defendant, but by Thomas Duncan. The plaintiff put in evidence the complaint and the first answer for the purpose of showing that the defendant did own and control the line from Beaufort to Newport. The defendant requested the court to charge the jury "That, if they believed the evidence, the line from Beaufort to Newport was not owned and operated by the defendant, and it would not be liable for any error which occurred on that line." This instruction the court declined to give, but charged that "It is a question for the jury to find, from the greater weight of the evidence, whether the line from Beaufort to Newport was owned and operated by the defendant, and if the jury found that the line from Beaufort to Newport was not owned or operated by the defendant it would not be liable for any error that may have occurred on that line,
the burden of proof as to who owned the line from Beaufort to Newport being on the plaintiff." Defendant excepted.
The defendant requested the court to charge the jury that the defendant would not be responsible for any error that may have occurred in the transmission of the telegram before the same reached its line; and if the jury should find from the evidence that the telegram was delayed by reason of an error in the transmission and change of address before it reached the line of the defendant, then the jury would answer the first issue "No." The court, in response to the prayer, instructed the jury as follows: "The defendant would not be responsible for any error that may have occurred in the transmission of the telegram before the same reached its line. If the jury should find from the evidence that the telegram was delayed by reason of an error in transmission and the change of the address before it reached the line of the defendant, and such delay was the cause of the failure of the plaintiff to receive the message in time to have attended the funeral, then they will answer the first issue `No.'"
The evidence tended to show that when the message was received at Richmond, the operator handed it to a messenger for delivery to the sendee, and that he used a bicycle in delivering messages. The messenger, who had nine other messages to deliver, went to the place described in the message, No. 23 East Marshall Street, and also to 23 West Marshall Street, and inquired for C. S. Willis, but found that he (321) did not live at either place. He also inquired at each house as to where Willis could be found, but received no information. The messenger returned to the office at 6 o'clock P. M., the same day, as soon as he had delivered the other messages, and handed the message for Willis to the operator, to whom he reported the facts. The operator examined the city directory, and not finding Willis' name, inquired of other persons by that name about him. Failing to get any information, he wired back for a better address, but his service message was not received at Newport in time to wire to Beaufort and receive an answer before the time for closing the office, which was 9 o'clock P. M. A message was received at Newport from Beaufort giving the correct address that night, but after office hours, and it was not forwarded until the next day. The message from Newport to Richmond had to be sent via New Bern and relayed at that place, as the main or direct line to Richmond could not be used, "it being in trouble," as the operator testified. If it had been in order, the corrected message could have been sent to Richmond that night. It could not be sent by New Bern, as the office there had been closed for the night. There was evidence that no inquiry was made at the postoffice at Richmond for C. S. Willis, who lived at 923 Marshall Street, nor was there any further search for him. The night clerk at
Richmond mailed a postal card to Willis. The plaintiff could have left Richmond and attended the funeral of his father if the message had been delivered to him at any time before 8 P. M. on the day it was sent, and would have left by the first train.
The court charged the jury as to what would constitute negligence in failing to deliver the message after it was received by defendant, substantially, as follows: If the defendant did not operate the Beaufort and Newport line and the jury should find that an error in the message occurred on that line, and at the time the message was received by defendant company it had an incorrect address and the one at which defendant undertook to deliver the telegram, then the jury will consider whether or not the defendant company was guilty of negligence after the telegram reached its line at Newport; and if in the exercise of (322) ordinary care and diligence the defendant could have gotten the correct address and delivered the telegram to plaintiff, so that he could have left Richmond on 27 July and reached home in time for the funeral, and defendant failed to do so, it was guilty of negligence, and the jury will answer the first issue "Yes." Defendant excepted to this instruction.
There was evidence as to plaintiff's mental anguish and damages.
The court having refused to charge, as requested, that there was no evidence of any negligent delay in transmitting and delivering the telegram, and that the jury should answer the first issue "No," the defendant excepted.
At the close of the testimony the defendant moved to nonsuit the plaintiff. The motion was refused, and the defendant excepted.
There was a verdict for the plaintiff, upon which judgment was entered, and the defendant appealed.
The plaintiff alleged in his complaint that the telegram was delivered to the defendant at Beaufort, N.C. for transmission to him at Richmond, Va. This was a clear and distinct allegation that the defendant was at the time the owner of the telegraph line between Beaufort and Newport, for this was a part of the line from Beaufort to Richmond, and the pleadings and facts show that this fact was well known to the defendant. It is also alleged that the defendant was engaged in the business of transmitting messages from Beaufort to Richmond, and received the message in question at Beaufort and undertook to transmit and deliver it to the plaintiff at Richmond. The message, it appears, was actually sent by way of Newport and over the
Beaufort and Newport line. Those allegations, which were made in sections 1, 2 and 3 of the complaint, were not denied in the first answer of the defendant, which was filed 25 January, 1908, and no reference was made to them, although the allegations of the other sections of the complaint were specially denied. If there had been no amended answer the allegations of the first three sections of the complaint would be deemed to be admitted, and the defendant would consequently (323) be liable for any error in transmitting the message from Beaufort to Newport on its way to Richmond which occurred on that line. The language of the statute is that "Every material allegation of the complaint not controverted by the answer shall, for the purposes of the action, be taken as true." Revisal, sec. 503. When the plaintiff alleged, substantially, though very plainly, that the defendant was the owner of the line from Beaufort to Newport, and also alleged, in so many words, that it received the message at Beaufort and agreed to transmit and deliver it to the plaintiff, the defendant was called upon to deny the allegation, if not true, and by not doing so it tacitly admitted the truth of it. One of the fundamental maxims of the law is that silence implies consent. (Qui tacet, consentire videtur.) For instance, where there is a duty to speak, and the party upon whom this duty rests does not, an assent may be inferred from his silence. Russell v. Thornton, 4 H. N., 798, per Bramwell, J.; Broom Legal Maxims (8 Ed.), 786. In this case there was a verified complaint, containing the material allegation that the plaintiff owned the Beaufort and Newport line and had undertaken to transmit the message, not from Newport to Richmond, as now contended and as averred in the defendant's amended answer, but from Beaufort to Richmond. It was the defendant's duty to deny this allegation, if it were not true, as it vitally affected the question of its liability in one aspect of the case. Having chosen to be silent when it had the opportunity to traverse the allegation, we must hold that the complaint and first answer constituted some evidence from which the jury might reasonably infer the ownership by the defendant of the line from Beaufort to Newport. In Perry v. Manufacturing Co., 40 Conn. 317, the Court say: "Admissions by a party or by an authorized agent, either in court or out, may be given in evidence; but the circumstances surrounding the admission, the purposes for which it was made, and the conditions attached to it, may be fully shown. It may not infrequently happen that a party will not be bound by an admission and will not be estopped from denying its truth. And in view of the showing on both sides, allowing each party to prove the whole truth, it will be for the triers to determine how the proof stands on the facts in controversy, on which the admission is claimed to bear. These principles were acted on substantially in the court below. They seem to us (324)
just and reasonable and in harmony with the law of evidence." See, also,Pope v. Allis, 115 U.S. 363, where many cases are cited in support of the competency of a pleading in an action as evidence against the party filing it, even where he had no personal knowledge of the facts alleged, but made his averment on information and belief. The case of Avery v. Stewart,136 N.C. 426, would seem to be directly in point. The fact that the defendant afterwards filed an amended answer and denied that it was the owner of the Beaufort and Newport line does not affect the competency of the evidence, but merely detracts from its weight or its sufficiency to prove the fact now in issue. See, also, 8 Enc. Pl. Pr., 27, and notes.McMillan v. Gambill, 115 N.C. 352; 11 A. E. Enc. (2 Ed.), 488. It would seem unreasonable that while the silence of a party when called upon in a conversation to speak is receivable in evidence against him, an answer which is deliberately prepared and verified by the oath of the defendant in response to a demand for the exact truth should be incapable of probative force. Candor and frankness required the defendant to answer every material allegation well pleaded, and any failure to deny or evasion by him or suppression of the truth should be considered as some evidence against him of the truth of the allegation. Such conduct is admissible as evidence, although it may be explained and is not conclusive.
We think there was some evidence of negligence in failing to deliver the message after it was received at Richmond. The court charged the jury substantially that if the defendant's servants failed to exercise ordinary care in attempting to deliver the message, and if by the exercise of such care the message could have been delivered in time for the plaintiff to have reached his home and attended the funeral of his father, there was negligence. This instruction is sustained by the case of Hendricksv. Telegraph Co., 126 N.C. 304. See, also, Lyne v. Telegraph Co.,123 N.C. 129. The charge of the court was very general, it is true, but it is sufficient, in the absence of any special prayer for a more specific instruction.
(325) The motion to nonsuit was properly refused, as there was some evidence of negligence for the consideration of the jury under the instruction of the court.
It is not necessary to discuss the other assignments of error. We have carefully examined them and do not find any error in the rulings to which the defendant excepted.
No error.