Thompson v. Southern Express Co

• Decision Date: 16 April 1907
• Citation: 144 N.C. 389,57 S.E. 18
• Parties: THOMPSON v. SOUTHERN EXPRESS CO.
• Court: North Carolina Supreme Court

57 S.E. 18

144 N.C. 389

THOMPSON

v.SOUTHERN EXPRESS CO.

Supreme Court of North Carolina.

April 16, 1907.

1. Action—Single Cause op Action.

A complaint alleged that defendant express company agreed with plaintiff to deliver to plaintiff certain whisky, which he had ordered for his mother, who was ill, and that defendant refused to deliver the whisky, whereby plaintiff's mother was compelled to endure unnecessary suffering, and that plaintiff, while attending his mother, witnessed her agony, which he could not relieve on account of defendant's default. Held, that the complaint was not demurrable on the ground that it contained a separate cause of action for mental anguish.

2. Courts — Jurisdiction — Amount in Dispute.

A complaint alleged that defendant express company agreed to transport to plaintiff $2 worth of whisky, but refused to deliver it to plaintiff, whereby his mother, for whom it had been ordered, and who was ill, experienced unnecessary suffering, which was witnessed by plaintiff, and plaintiff demanded damages of over $1,000. Held, that even though plaintiff should proceed as for a breach of contract involving a breach of public duty, instead of in tort, the action was within the jurisdiction of the superior court; a contention that, eliminating the demand for mental suffering, the facts would only tend to support an action for breach of contract in which the damages could not be more than $2, so that the action could only be brought before a justice of the peace, being untenable.

Appeal from Superior Court, Orange County; Moore, Judge.

Action by W. E. Thompson against the Southern Express Company. From a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

The complaint alleged, in substance, that plaintiff having bought and paid for $2 worth of whisky at Wilmington, N. C, where it was lawful to make and sell whisky, defendant company agreed to transmit and deliver said whisky to plaintiff at Mebane, N. C; that on or about June 1, 1906, the whisky having arrived at Mebane in good order and properly addressed to plaintiff, plaintiff applied to agent of defendant company for same, offering to pay the express charges, and defendant refused, and still refuses, to deliver the package as It had contracted and undertaken to do; that the whisky had been ordered pursuant to medical prescription, for plaintiff's mother, who was desperately 111 with a fatal malady, and was desired and necessary to relieve her suffering and prolong her life; that the agent of defendant company was fully informed of the conditions and of the purpose for which the whisky was to be used, and, notwithstanding this knowledge, said agent unlawfully and willfully refused to deliver said whisky to plaintiff, or any part thereof; that, by reason of this misconduct and breach of duty on part of defendant company, the plaintiff's mother was compelled to endure great increased and unnecessary suffering for a week or more; and that "meantime, while attending at the bedside of his dying mother, he witnessed her agonizing pains, which he could not relieve on account of the wanton default of defendant, whereby he was damaged to the amount of $1,999"—and prays judgment for said amount and costs of action. To this complaint defendant demurs, as follows: "The defendant, the Southern Express Company, comes into court and demurs to the complaint of the plaintiff, in that it does not state facts sufficient to constitute a cause of action: (1) That the plaintiff is not entitled to recover, as alleged in the complaint, for mental anguish in an action of this character, when there is no bodily harm done to him. (2) That the...