Holler Et Ux v. Western Union Tel. Co

• Decision Date: 09 December 1908
• Citation: Holler Et Ux v. Western Union Tel. Co, 63 S.E. 92, 149 N.C. 336 (N.C. 1908)
• Parties: HOLLER et ux. v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

63 S.E. 92

(149 N.C. 336)

HOLLER et ux.

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina.

Dec. 9, 1908.

1. Trial (§ 352^*)—Issues—Sufficiency.

Issues must be so framed that when answered they will support the judgment.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 840; Dec. Dig. § 352.*]

2. Trial (§ 349*)—Issues—Sufficiency.

The rule that the refusal to submit an issue tendered by either party cannot be reviewed on appeal, unless exception is taken, does not conflict with the rule requiring the judge on his motion, or at the suggestion of counsel, to submit such issues as are necessary to settle the controversy, and on his failure so to do, the judgment will be reversed.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 823; Dec. Dig. § 349.*]

3. Appeal and Error (§ 1062*)—Harmless Error—Issues—Sufficiency.

A party cannot complain because a particular issue was not submitted to the jury, provided the issues submitted sufficiently dispose of the controversy.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §> 4213; Dec. Dig. § 1062.*]

4. Telegraphs and Telephones (§ 56*)—Delivery of Telegram—Negligence—Party Entitled to Sue.

Though a sendee of a message may recover from a telegraph company the damages sustained by negligent delay in the delivery thereof, where the message was on its face intended for the benefit of the sendee, or the company had knowledge of that fact, yet a person not mentioned in the message, or whose interest therein is not communicated to the company, cannot recover damages for negligent delay.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. § 37; Dec. Dig. § 56.*]

5. Telegraphs and Telephones (§ 67*)—Delivery of Telegram—Negligence—Damages.

Unless the import of a telegram is shown by its terms, or is made known by informationto the operator receiving it on behalf of the telegraph company for transmission, no damages are recoverable for failure to correctly transmit and deliver beyond the price paid for the services.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. § 65; Dec. Dig. f

67. ^*]

6. Telegraphs and Telephones (§ 68*)—Delivery of Telegram—Negligence—Person Entitled to Sue.

A telegraph company delaying the delivery of a death message addressed to a married man alone, and not disclosing any interest of his wife in the subject-matter, is not liable for the mental anguish of the wife, caused by her inability to attend the funeral of her sister, but to recover, she must show that the operator of the company was notified of her interest in the message.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. § 70; Dec. Dig. §

68. *]

7. Judgment (§ 256*)—Conformity to Findings.

Where, in an action against a telegraph company for delay in the delivery of a message announcing the death of a person, the complaint alleged that the message, addressed to a married man alone, was intended for the benefit of his wife, who was a sister of the deceased, and that the company knew the facts, and the company denied the allegations of the complaint, except that the message was addressed to the man alone, an affirmative answer to the issue whether the company negligently failed to deliver the message, submitted under an instruction confining the issue to the transmission and delivery of the message addressed to the man alone, did not support a judgment for the wife for mental anguish, in the absence of a finding that she had a beneficial interest in the message known to the company.

[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 256.*]

Clark, C. J., dissenting.

Appeal from Superior Court, Iredell County; Councill, Judge.

Action by John Holler and wife against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. Reversed and new trial awarded.

This action was brought by John Holler and wife to recover damages for delay in delivering a telegram. It is alleged in the complaint that Mrs. Hattie Hastings died on January 1, 1907, at 8 o'clock p. m., and J. D. Rogers, a relative, at 5 o'clock a. m., on January 2, 1907, requested the defendant's operator at Huntersville, N. C, to send a message to John Holler and wife, who lived at Mor-risville, N. C, notifying them of Mrs. Hastings' death, and paid the charges therefor. The operator was told that Mrs. Hastings was a sister of Mrs. Holler. He wrote the message for Rogers, and agreed to transmit it, but it was delivered at Morrisville too late for Mrs. Holler to reach Huntersville or the place of burial before the funeral, by reason of which she suffered mental anguish, and is entitled to recover damages therefor. The message, as written by the operator, was as follows: "Huntersville, N. C, Jan. 2, 1907. To John Holler, Care of Bob White, Morrisville, N. C. Hattie died at 8 o'clock last night. Bury this afternoon. J. D. Rogers." The defendant admitted that it had received and transmitted the message as above set forth, but denied the other allegations of the complaint. There was evidence tending to sustain the plaintiff's allegations. Issues were submitted to the jury, which with the answers thereto are as follows: "(1) Did the defendant negligently fail to transmit and deliver the telegram as alleged in the complaint? Answer. Yes. (2) Did the sender of the telegram, Rogers, make known to the defendant at Huntersville, at the time the telegram was filed for transmission, the relationship existing between deceased, Hattie Hastings, and Maggie Holler? Answer. Yes. (3) If the said telegram had been delivered without delay, could and would the said Maggie Holler have attended the funeral of Hattie Hastings? Answer. Yes. (4) What damage, if any, is plaintiff Maggie Holler entitled to recover? Answer. $500." Exceptions were taken to several of the court's rulings, but it is not necessary to state but one, which is the exception to the rendition of judgment for the plaintiff Maggie Holler upon the verdict Defendant appealed.

Armfield & Turner and Tillett & Guthrie, for appellant.

H. P. Grier and A. L. Starr, for appellees.

WALKER, J. (after stating the facts as above). Issues must be so framed that when answered they will be sufficient to support the judgment. "We are not inadvertent to the long line of decisions laying down the rule that the refusal of the court to submit an issue tendered by either party cannot be reviewed by this court unless exception is taken in apt time; nor do we wish to be understood as reversing or modifying it That rule, when reasonably construed, does not conflict with the one herein laid down. What we now say is that section 395 of the Code is mandatory, binding equally upon the court and upon counsel; that it is the duty of the judge, either of his own motion or at the suggestion of counsel, to submit such issues as are necessary to settle the material controversies arising in the pleadings, and that in the absence of such issues, or admissions of record, equivalent thereto, sufficient to reasonably justify, directly or by clear implication, the judgment rendered therein, this court will remand the case for a new trial. Under this rule there was error in the rendition of the judgment, and a new trial Is therefore ordered." Tucker v. Satterthwaite, 120 N. C. 118, 27 S. E. 45. That case hassince been approved. Strauss v. Wilmington, 129 N. C. 99, 39 S. E. 772; Hatcher v. Dobbs, 133 N. C. 239, 45 S. E. 562; Kelly v. Traction Co., 133 N. C. 418, 45 S. E. 826. In Kalkner v. Pitcher, 137 N. a 449, 49 S. E. 945, the rule was stated thus: "It may be conceded as a general proposition that a party cannot complain because a particular issue was not submitted to the jury unless he tendered it, but the rule is subject to this qualification that the issues submitted must in themselves be sufficient to dispose of the controversy, and to enable the court to proceed to judgment, for in that respect the diuty of the court to submit issues is mandatory. * * *"

It follows that, if the issues in this case were not sufficient to warrant the judgment which was rendered, there was error for which a new trial must be awarded The judgment was rendered in favor of the feme plaintiff, Maggie Holler, alone, and the verdict in our opinion did not authorize it. There is no finding that Mrs. Holler had any beneficial interest in the message which the law recognizes as sufficient to sustain an action for damages, when there has been negligence, on the part of the telegraph company in its transmission, which has caused the plaintiff mental anguish and consequent damage. In Helms v. Telegraph Company, 143 N. C. 386, 55 S. E. 831, 8 L. R. A. (N. S.) 249, 118 Am. St. Rep. 811, Justice Brown, for the court, says: "The right of the sendee to recover of a telegraph company for error or negligence in the transmission or delivery of a telegram is altogether denied in Great Britain. Playford v. Tel. Co., L. R., 4 Q. B., 706. In this country the English doctrine does not generally prevail. Here the weight of authority holds that the sendee may recover in his own name such damage as he may have sustained by reason of negligence when the message was intended for his benefit, and it was apparent on the face of the message, or the company had knowledge of it. 2 S. & R. Neg. (5th Ed.) § 543; Joyce, Elec. Law, § 1008; Frazier v. Tel. Co., 45 Or. 414, 78 Pac. 330, 67 L. R. A. 320." But we think this case is, in principle, not unlike Cranford v. Telegraph Co., 138 N. C. 162, 50 S. E. 585, in which we said: "There can be no recovery of damages for delay in transmission and delivery, where it does not, in any way, appear that the plaintiff was an intended beneficiary of the message. We could not well hold otherwise without subjecting the defendant to liability for damages alleged to have been sustained by those who are strangers to its contracts, and to whom it owed no duty whatever. The mental anguish suffered by the feme plaintiff cannot, under the facts and...