Morton v. Western Union Tel. Co

• Decision Date: 13 May 1902
• Citation: 41 S.E. 484,130 N.C. 299
• Court: North Carolina Supreme Court
• Parties: MORTON et al. v. WESTERN UNION TEL. CO.

41 S.E. 484

130 N.C. 299

MORTON et al.

v.WESTERN UNION TEL. CO.

Supreme Court of North Carolina.

May 13, 1902.

TELEGRAM—DELAY IN DELIVERY—RIGHT OF ACTION—SURVIVAL—MISJOINDER OF CAUSES OP ACTION—DIVISION.

1. Under Code, § 1491, providing that: "The following rights of action do not survive: * * * (2) Causes of action for false imprisonment, assault and battery, or other injury to the person, where such injury does not cause the death of the injured party, "—an action against a telegraph company to recover for mental anguish caused by its delay in delivering a telegram dies with the person.

2. Code, § 267, provides that the plaintiff may unite in the same complaint several causes of action where they all arise out of the same transaction, out of contracts, express or implied, out of injuries to the person, etc. A complaint against a telegraph company joined causes of action in favor of a husband and wife individually and in favor of the latter as administratrix of her mother for mental anguish caused by the company's delay in delivering a telegram requesting that a physician be sent to care for the mother in her last illness. Held a misjoinder of causes of action.

3. The causes of action could not be divided under Code, § 272, providing that, if a demurrer be allowed for the reason that several causes of action have been improperly united, the judge shall order the action to be divided, there being not merely a misjoinder of actions, but also of parties.

Appeal from superior court, Onslow county; Allen, Judge.

Action by Eliza P. Morton, administratrix, and others, against the Western Union Telegraph Company. Order sustaining defendant's second ground of demurrer to the complaint and overruling the other grounds, and both sides appeal. Affirmed on plaintiffs' appeal. Reversed on defendant's appeal.

The plaintiff administratrix is a daughter of the deceased and the wife of her co-plaintiff. The deceased, Josephine Pelletier, was, at the time the telegram was sent, residing with the plaintiffs in the town of Jacksonville, N. C, and was very ill with pneumonia. Among other allegations, the complaint contains the following: "(6) That on the 21st day of February, 1901, the defendant transmitted to the plaintiff C. C. Morton, at Jacksonville, N. C, the following message: 'Wire me Aunt Joe's condition. Shall I send physician V P. H. Pelletier.' " "(10) That upon the advice and request of her attending physician that Dr. Primrose, of Newborn, be called into consultation, the plaintiff C. C. Morton, upon behalf of himself and wife and her mother, delivered to defendant's agent at Jacksonville a dispatch for P. H. Pelletier. (11) That the said message was delivered to the agent at Jacksonville, N. C, upon the opening of the office at that place on the morning of February 22, 1901, as follows: 'Feb. 22, 1901. To P. H. Pelletier, Newbern, N. C: Send Primrose this morning. Condition critical. C. C. Morton, '—and the charges for delivery of the same were prepaid, and received by defendant." "(13) That the defendant negligently failed to perform this duty, and failed to deliver the said message to P. H. Pelletier promptly. (14) That by reason of the failure to deliver the said message promptly the same did not reach the said P. H. Pelletier until after the departure of the train from Newbern for Jacksonville, and there was not another train for twenty-four hours, whereby the plaintiff's intestate was deprived of the benefits of the professional services of Dr. Primrose. (15) That the said Josephine Pelle-tier was greatly disappointed and shocked at the failure of the arrival of Dr. Primrose, and began to sink, and died before the arrival of the next train from Newborn. (16) That by defendant's failure to deliver the said message as per contract, and its negligence and breach of duty as aforesaid, the said Josephine Pelletier and the plaintiffs of this action were greatly damaged by reason of her failure to have the desired and necessary medical attendance, and the consequent disappointment, loss, and suffering, in a great sum, to them and to each of them, to-wit, $1,909; wherefore plaintiffs pray for judgment for damages $1,999 and the costs of this action." The defendant, the Western Union Telegraph Company, demurs to the complaint, for matter appearing on the face thereof, on the following grounds: "(1) That several causes of action have been improperly united in said complaint, to wit, a cause of action in favor of Eliza P. Morton, administratrix of Josephine Pelletier, for mental and physical suffering on the part of the said ...