12 S.E. 427 | N.C. | 1890
(455) Verdict and judgment for plaintiff. Appeal by defendant.
This is a petition to rehear the case reported in
Upon a careful review of the former opinion of the Court, we think the petition should be allowed. The fifth paragraph of the charge is a substantial compliance with plaintiff's sixth request to charge. There is no specified exception to the charge. The appellant cannot be heard to complain of an instruction not excepted to, especially when it follows, in substance, his prayer of instruction.
The Court was misled by the somewhat confusing "make-up" of the lengthy record into supposing that defendant's seventh prayer for instruction was passed over unnoticed in the charge, and, while the Court did not pass upon the correctness of the prayer, it held that the court *341 below should have granted or have refused it, so that the jury might have had the benefit of the construction of the law involved in the request. A second examination shows that, in fact, the instruction was given as asked by the defendant. It was an erroneous instruction, as has since been held in Young v. Tel. Co., ante, 370, but, as the error was in favor of the appellant, it cannot be cause of complaint by him.
There was no request to charge that the negligence of the defendant, as shown, was too remote to sustain the action, and an omission to charge upon any particular aspect of a case is not error (456) unless an instruction is asked and refused. S. v. Bailey,
A case similar in some respects to this is Tel. Co. v. Cooper,
The instruction as to nominal damages was not excepted to, and, besides, as the jury gave substantial damages, we cannot see how the appellant could have been prejudiced. These views require us to consider the other exceptions, which were not passed upon in the former opinion.
The first and second exceptions were to the evidence, and were without merit. The appellant, on the argument, properly abandoned the third exception, which was for a refusal to nonsuit the plaintiff, on the ground that he was a citizen of Virginia, and, therefore (as was urged below), incompetent to maintain this action in the courts of this State. Walters v.Breeder,
The fourth exception was to the ruling of the court that, under the evidence, there was prima facie an office of the Western Union Telegraph Company in Milton. The evidence of the agent there was that the office in Milton had the sign of that company over the door, and that the money received for sending or receiving messages (457) *342 was paid by him to the treasurer of that company. Also, it was in evidence that the defendant received the message at Danville for transmission to Milton. We find no error in this ruling. It would seem that it was made upon defendant's contention that there was no evidence to show that it was responsible for the office at Milton.
The defendant's first, second, third, fourth and seventh prayers were given. The sixth prayer was substantially given as above stated. The eight and ninth prayers were substantially given in the charge, and the exception as to them was abandoned in this Court. The fifth exception was for refusal to give the fifth prayer, which was that, as the message was unrepeated, the defendant, as per terms on its blanks, was not liable for delay in transmitting unless guilty of gross negligence. The stipulation as to repeating messages has been held reasonable in some courts as to mistakes in transmission, but not as to delays. In Lassiter v. Tel. Co.,
It is sufficient, however, for us to say that the present is a case of a delay, not of a mistake, in the transmission, and that the nature of the message and the length of the delay (about twenty-four hours) both make it a case of gross negligence, unless accounted for to the satisfaction of the jury, which was not done.
There was no other exception than those we have passed upon, except the general and vague one "to the charge as given," which is too indefinite to give any information either to the appellee or the Court. According to the rulings of nearly all, if not all, appellate courts, and certainly of this Court, it does not call for consideration. McKinnon v. Morrison,
On a review of the exceptions of the appellants, we can find (459) no error committed in the trial below.
Per Curiam. Petition allowed.
Cited: Sherrill v. Tel. Co.,