Bennett v. Western Union Tel. Co

• Citation: 128 N.C. 103,38 S.E. 294
• Court: United States State Supreme Court of North Carolina
• Decision Date: 09 April 1901
• Parties: BENNETT. v. WESTERN UNION TEL. CO.

38 S.E. 294

128 N.C. 103

BENNETT.

v.WESTERN UNION TEL. CO.

Supreme Court of North Carolina.

April 9, 1901.

TELEGRAPH COMPANIES—MENTAL ANGUISH-RELATIONSHIP OF PARTIES—OBJECTION ON APPEAL—INSTRUCTIONS.

1. A telegraph company, sued for failure to deliver a message calling the sendee to a funeral, cannot first on appeal object that the complaint did not aver directly that the sendee would have come if he had received the message, such fact being alleged inferentially.

2. A father-in-law may recover for mental anguish because unable to be at his daughter-in-law's funeral, caused by the failure of a telegraph company to deliver a message.

3. It is not essential for recovery for failure to deliver a telegram that the relationship of the parties be disclosed in the message, where it relates to sickness or death.

4. In response to a prayer for instruction, the case stated, "The court charged the jury fully on the law, to which there was no exception." Held, that appellant was entitled to have the judge set out what he charged in lieu of the prayer, that the appellate court might see that it "fully" covered the prayer asked.

Appeal from superior court, Surry county; Timberlake, Judge.

Action by R. L. Bennett against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed.

Glenn & Manly, for appellant.

Watson, Buxton & Watson, for appellee.

CLARK, J. The defendant objects in this court for the first time that the complaint does not aver directly that the sendee would have come if he had received the message promptly. It is alleged inferentially. The direct statement should have been made, but upon the face of the complaint there is not a "statement of a defective cause of action, " but a "defective averment of a good cause of action, " which is cured by failing to demur thereto. Ladd v. Ladd, 121 N. C. 118, 28 S. E. 190, and other cases cited in Clark's Code (3d Ed.) § 242; Bank v. Cocke, 127 N. C. 473, 37 S. E. 507. As the case goes back on another ground, the plaintiff will have opportunity to ask leave to amend.

The objection that the relationship of sendee (father-in-law) does not entitle plaintiff to recover for mental anguish, by reason of failure to be at his daughter's funeral, is answered by the discussion and decision in Cashion v. Telegraph Co., 123 N. C. 267, 31 S. E. 493.

The relationship of the parties need not be disclosed in the message where the telegram relates to sickness or death. Lyne v. Telegraph Co., 123...