Thompson v. Southern Express Co., 144 N.C. 389

Hoke, J.

Without comment on the merits or legal bearings of this controversy as they shall appear when the facts are established, we are of opinion that the demurrer of defendant was properly overruled.

The mental suffering for which plaintiff demands compensation is not set forth as a separate cause of action at all, but is stated and claimed as damages incident to a cause of action for a wrongful failure on the part of defendant company to deliver the whiskey. This being true, it is not open to defendant by demurrer to eliminate the element of damage from plaintiff’s demand; and such a demurrer, therefore, was properly overruled.

The case is controlled by the decision in Hall v. Telegraph Co., 139 N. C., 369-373. In that opinion, on facts very similar to those appearing in the present appeal, the Court said: “Here is a plain and concise statement of a cause of action for breach of contract, in the negligent failure of the defendant company to deliver a telegram. It would seem that the character and urgency of the message were such as to notify the defendant that unless a satisfactory answer was received in regular course of transmission the plaintiff would go to Fayetteville, which in fact he did, according to the allegations of the complaint. If this be the correct and reasonable interpretation of the message, the cost of the trip to Fayetteville would be an element of damage. There is an additional allegation, addressed to tbe question of mental anguish. This is not stated as a separate cause of action at all, but only as a further element of damage. Its consideration may or may not arise on the further hearing, and in any event the demurrer which seeks to eliminate this feature of the plaintiff’s demand at the present stage of his case is .irregular and defective. Giving such defect its technical term, we should say the demurrer is too broad. It goes to the entire complaint, and this, as we have seen, contains a good cause of action well pleaded, and, if the facts can be proved as alleged, the plaintiff can recover some damage.” See, also, State v. Young, 65 N. C., 579; Cowand v. Meyers, 99 N. C., 198.

It is urged on the part of defendant that if this demand for mental suffering is eliminated the -facts would only tend to support an action for breach of contract, in which the damages could not be more than two dollars, the alleged value of the whiskey, and perhaps some interest; and that such a demand could only originate in the court of a justice of the peace. But this position cannot be maintained.

In the first place, the facts would seem to permit that the action be sustained as a demand in tort if plaintiff should so elect. But even if he should proceed as for breach of contract involving a breach of a public duty, the defendant is not permitted, by this irregular and defective pleading to restrict the complaint to his own point of view. Plaintiff is entitled to have his complaint considered as a whole; and considering it as a whole, it is the amount demanded, if made in good faith and on facts which reasonably tend to support it, that fixes the jurisdiction of the Court. Boyd v. Roanoke Lumber Co., 132 N. C., 185; Sloan v. Railroad, 126 N. C., 487.

This is certainly the general rule, and as now advised we see no reason to except tliis case from tbe rule which generally obtains.

There is no error, and the judgment overruling the demurrer is

Affirmed.

Case Details

Case Name: Thompson v. Southern Express Co.

Court Name: Supreme Court of North Carolina

Date Published: Apr 16, 1907

Citations: 144 N.C. 389; 57 S.E. 18; 1907 N.C. LEXIS 154

Court Abbreviation: N.C.