Harrison v. Western Union Telegraph Co.
| Decision Date | 15 November 1904 |
| Citation | 48 S.E. 772,136 N.C. 381 |
| Parties | HARRISON et al. v. WESTERN UNION TELEGRAPH CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Rowan County; O. H. Allen, Judge.
Action by Annie Harrison and husband against the Western Union Telegraph Company. From a judgment against defendant, it appeals. Reversed.
An instruction assuming as proved the fact of plaintiff's relationship to deceased, as pleaded, is error, there being no evidence or legal admission thereof, though it was not called in question on the trial.
C. W Tillett, F. H. Busbee & Son, and Edwin C. Gregory, for appellant.
R. Lee Wright and Walser & Garland, for appellees.
This is an action brought by the feme plaintiff to recover damages for the negligent failure to deliver a telegram within a reasonable time. This failure to promptly deliver, of itself raised the presumption of negligence, aside from the substantial testimony tending to prove it.
Sherrill v. Tel. Co., 116 N.C. 655, 21 S.E. 429; Hendricks v. Tel Co., 126 N.C. 304, 35 S.E. 543, 78 Am. St. Rep. 658; Laudie v. Tel. Co., 126 N.C. 431, 35 S.E. 810, 78 Am. St. Rep. 668; Rosser v. Tel. Co., 130 N.C. 251, 41 S.E. 378; Hunter v. Tel. Co., 130 N.C. 602, 41 S.E. 796; Cogdell v. Tel. Co., 135 N.C. 431, 47 S.E. 490.
The telegram was in the following words: Stating upon its face the pregnant facts of death and burial, it was sufficient of itself to put the defendant on notice of its importance, aside from the testimony tending to show special information given by the plaintiff to the defendant company. Hunter v. Tel., 135 N.C. 458, 47 S.E. 745, and cases therein cited.
We do not understand the defendant seriously to contest the verdict as to its own negligence, but to direct its contentions principally, if not solely, to the measure and quantum of damages. There is but one exception which we deem necessary for discussion. The court below charged as follows: "While there is no direct evidence that the feme plaintiff suffered any mental anguish from not being able to see her son's body or to attend the funeral, yet the jury are allowed to presume the existence of such pain and mental anguish from the relationship existing between the feme plaintiff and her son." We think there was error in this part of the charge, inasmuch as his honor assumed as proved the alleged relationship. He should have charged substantially as follows: "If you find from the evidence that the plaintiff was the mother of the deceased, the law then raises the presumption of mental suffering on her part." It is but just to his honor to say that the fact of such relationship seems not to have been called in question upon the trial, but, as we cannot find in the record any legal admission to that effect, either expressly or by necessary implication, and as the defendant insists upon the exception, we must adhere to the general rule requiring all material allegations to be proved by the party alleging them. This matter does not come under any of the exceptions to the rule. Indeed, the fact of such relationship was peculiarly within the knowledge of the plaintiff, to whose recovery it was essential, in the absence of other proof of suffering. It now seems to be an admitted fact, appearing from an uncontradicted affidavit filed in support of a motion for a new trial on account of newly discovered testimony, that the deceased was the son of the male plaintiff, but the stepson of the female plaintiff, who is the real plaintiff in this action.
Such relationship does not, in our opinion, raise the presumption of mental suffering. We do not base our decision as to the error in the charge upon the newly discovered testimony, but upon the general rule of law, the wisdom of which is however, emphasized by such testimony. We do not mean to intimate in any degree that the facts of the actual relationship were...
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