Willis v. Western Union Telegraph Co.

Walker, J.,

after stating the case: 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 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 consentiré victetur.) 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. and N., 798, per Bramwell, J.; Broom’s Legal Maxims (8th Ed.), 786. In this case there was a verified complaint, containing the material allegation that the plaintiff owned the Beaufort and Newport line ánd 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 was 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 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. of PI. and Pr., p. 27, and notes. McMillan v. Gambill, 115 N. C., 352; 11 Am. and Eng. Enc. (2d 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.

"W"e 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 Hendricks v. 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.

Tbe motion to nonsuit was properly refused, as there was some evidence of negligence for tbe consideration of tbe jury under tbe instruction of tbe court.

It is.not necessary to discuss tbe other assignments of error. We have carefully examined them and do not find any error in tbe rulings to which tbe defendant excepted.

No Error.