Holler v. Western Union Telegraph Co.
Decision Date | 09 December 1908 |
Citation | 63 S.E. 92,149 N.C. 336 |
Parties | HOLLER et ux. v. WESTERN UNION TELEGRAPH CO. |
Court | North Carolina Supreme Court |
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.
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.
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 Morrisville, 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: 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.
Issues must be so framed that when answered they will be sufficient to support the judgment. Tucker v. Satterthwaite, 120 N.C. 118, 27 S.E. 45. That case has since 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.C. 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 duty 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: . 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: An analogous doctrine is laid down in Williams v. Telegraph Co., 136 N.C. 82, 48 S.E. 559, in which it is said: "The principle uniformily sustained by the cases upon the subject, some of which we have cited, is that, unless the meaning or import of a message is either shown by its terms, or is made known by information given to the agent receiving it in behalf of the company for transmission, no damages can be recovered, for failure to correctly transmit and deliver it, beyond the price paid for the service." We may well add what is so well stated in Squire v. Telegraph Co., 98 Mass. 237, 93 Am. Dec. 162, that Let us apply these principles to the case in hand. The complaint alleges that the message was intended for John Holler and his wife, whereas the message, as sent, was addressed to John Holler alone, and, further, that the operator of the defendant was notified that Mrs. Hastings and Mrs. Holler were sisters. The defendant denies these allegations, except the allegation that the message was addressed to John Holler, and avers, in this...
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