dissenting: Tbe following telegram was sent and tbe charges paid:
“Monroe, N. Car., 9 :16 A, 1 Sept., 1932.
Noah Hobbs
R. F. D. 5 care J. S. Deal, Lexington, N. Car.
Mother died this morning at 6 :30. Mrs. M. E. Flow.”
It was a pathetic message to a brother from a sister on tbe death of their mother. Mrs. Flow was a sister of Noah Hobbs. He never received tbe message in time and was thus prevented from seeing tbe mother’s face once more, before ber body was committed to tbe ground.
“Earth to earth, ashes to ashes, dust to dust; looking for tbe general Resurrection in tbe last day.”
It was alleged and proved “Tbat at tbe time of sending of tbe telegram, this plaintiff resided within a quarter of a mile of tbe corporate limits of tbe city of Lexington on a good road, and was known generally by a large number of people in and around Lexington, and bis home was readily accessible, and if said telegram would have been bandied in tbe usual and customary manner, it would have been delivered to tbe addressee, this plaintiff, immediately after .it arrived in tbe city of Lexington on tbe morning of 1 September, 1932.” Lexington is a town of about 10,000 inhabitants.
Under tbe facts and circumstances of this case, I think tbe matter should have been left to tbe jury as to due care, such care as an ordinarily prudent person would exercise under tbe conditions existing at tbe time be is called upon to act.
*319I do not think it can be said as a matter of law that the delivery of the telegram in this case was a compliance by the "Western Union Telegraph Company with its contractual duty. On a motion as of nonsuit, the evidence is to be considered in the light most favorable to the plaintiff. C. S., 567; Lynch v. Tel. Co., 204 N. C., 252; Thigpen v. Ins. Co., 204 N. C., 551. The evidence in this case should have been submitted to the jury.
While it was held in Gainey v. Tel. Co., 136 N. C., 261, that where a death message was sent to plaintiff directed “Mr. Noel Gainey (P. O. Idaho), Fayetteville, N. C.,” and asked plaintiff to “write” if he could not come, the telegraph company was not liable for negligence on receiving the telegram at Fayetteville, in placing it in the postoffice, addressed to the plaintiff. Associate Justice Walker, in an exhaustive opinion, clearly limited that decision to the peculiar facts of that case. He pointed out that not only was it indicated that there was a double address, one of them as being the farthest reach of the telegraph service and the other as being the plaintiff’s postoffice address, but that it was also indicated that “celerity in the communication between the parties was not in this case the sole inducement for using the electric telegraph” as the plaintiff was directed to “write if you cannot come.”
“But whatever the reason of this peculiar wording of the message, we think if the plaintiff was requested to use the mails, the defendant may well be excused for doing likewise,” said Justice Walker. “It is so apparent from the language of the telegram that the company had the right to suppose that it was expected not to make a special delivery, but simply to post the message at Fayetteville, that there is no conceivable ground upon which we could hold it to have been negligent to deliver by mail instead of by special messenger.”
It can readily be seen that the Court, in that case, distinguished the facts so as to make it inapplicable in the instant case. The learned justice, who wrote the opinion, left no doubt that it was decided upon the peculiar facts of that particular case. As further evidence of his intention to limit his decision to the peculiar facts of that ease, we quote the following dicta from that opinion: “"We have held that when a message is received at a terminal office to which it has been transmitted for delivery to the person addressed, it is the duty of the company to make diligent search to find him and, if he cannot be found, to wire back to the office from which the message came for a better address, and likewise it is the duty of the company, when it has discovered that the person for whom the message is intended, lives beyond its free delivery limits, either to deliver it by a special messenger or to wire back and demand payment or a guarantee of payment, as it may choose to do, of the charge for special delivery and, if it fails to deliver without de*320manding and being refused payment of tbe charge it will be liable for its default. It is not liable, though, if the sender of the message, when proper demand is made, refuses to pay the extra charge for a special delivery beyond the limits established for free delivery by the company, provided these limits are reasonable.”
In the present case, the telegram addressed to “Noah Hobbs, R. E. D. 5, care J. S. Deal, Lexington, N. 0.,” contained no qualifying or explanatory matter, such as was contained in the message in the Gainey case, but conveyed only the statement: “Mother died this morning at 6:30.”
While evidence was offered on behalf of the defendant, in the instant case, through its agent at Monroe, that when Mrs. M. E. Flow, sister of the plaintiff, delivered the telegram she was asked to pay an extra charge to guarantee delivery. This was denied by her. It was also testified by the agent of the defendant at Lexington, that he called the agent of the defendant at Monroe and advised him that he had been unable to locate either Mr. Hobbs or Mr. Deal and that he had mailed the telegram to Mr. Hobbs, at the address given in the telegram, however, there was no evidence that the agent at Monroe made any effort to get in touch with Mrs. Flow, sender of the telegram.
Unless the inclusion of the words “R. E. D. 5” as a part of the telegram brings this case into a separate category, there is no doubt that the evidence in this case was sufficient to carry it to the jury. In Willis v. Tel. Co., 188 N. C., 114, this Court, in upholding the admissibility of evidence with reference to the telegraph company’s failure to notify the sender of the nondelivery of a message, quoted the following from Cogdell v. Tel. Co., 135 N. C., 431: “If for any reason it (telegraph company) cannot deliver the message, it becomes its duty to so inform the sender, stating the reason therefor, so that the sender may have the opportunity of supplying the deficiency, whether it be in the address or additional cost of delivery. The failure to notify the sender of such nondelivery is of itself evidence of negligence.”
While it was held in Garner v. Tel. Co., 100 S. C., 302, 84 S. E., 829, that the addressing of a telegram to the addressee, “R. F. D. 1” is a direction to the telegraph company to use the mail for delivery, and that the company was not liable for the delay thereby occasioned, there is equally impressive authority to the contrary. In the recent case of Western Union Telegraph Company v. Scarborough (Tex. Civ. App.), 44 S. W. (2d), 751, it was held that: “The mailing of a telegram which designates the postoffice box of the addressee is not a fulfilment of the telegraph company’s contractual or legal duty.” In Western Union Telegraph Co. v. Freeland (Tex. Civ. App.), 12 S. W. (2d), 256, it was held that: “The addressing of a telegram to a postoffice box was a direction *321to deliver the telegram to a person, not a box number.” That case, as in the instant case, involved a death message, and the Texas Court logically and correctly points out: “In the very nature o£ the transaction, notice was given of the importance of the delivery of the message to the person named therein, and it was not a direction for the delivery of same to an inanimate receiver. It is true that it has been held that where a telegram is addressed to one person in care of another, the delivery of the telegram to the party in whose care it is sent is a compliance with the duty that the telegraph company owes under its contract. Western Union Telegraph Co. v. Young, 77 Tex., 245, 13 S. W., 985; 19 Am. St. Rep., 751. In that case the sender contracted for it to be delivered to a party who would naturally be supposed to see that it reached the hands of the one for whom it was intended. It might be true that a telegram sent to a particular residence number without being addressed to any person, but delivered to that address, would be a compliance with the contract, but it cannot reasonably be supposed that, when the telegraph company delivered this telegram to box 102, it was thereby making a personal delivery to Mrs. Freeland.”
It was pointed out in that case that the telegraph company received the message without requesting more specific directions as to its delivery and that the sender was not requested to furnish a fee for delivery outside of its delivery limits. The Court concluded that “we cannot therefore say, as a matter of law, that the delivery of the telegram in this case was a compliance by the company with its contractual duty.” Hence, it was held that the trial court properly submitted the issue, “Did the defendant Western Union Telegraph Company use ordinary care to deliver the death message to Mrs. Freeland?”
The very nature of the use of telegraph facilities contradicts the idea that mails are to be used in the delivery of telegrams. As was pointed out in Sturtevant v. Western Union Telegraph Co., 84 A., 998: “Telegrams are sent because the sender desires the contents communicated to the addressee at once. That method is employed, instead of the mail, because of its dispatch. The message showed that it was the acceptance of an offer. Its importance was apparent upon its face, and when the defendant accepted it, and the money to forward it, in law it undertook to forward and deliver it at once. That was the consideration for which it accepted the plaintiff’s money.”
Under all the evidence of this case, it was clearly a matter for the jury to decide and the judgment of the court should be reversed.