The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-05-25
PROCEEDINGS In SUPREME COURT.
Cases Argued Yesterday. Appeals of End of
Docket to be Called Tuesday

REIGER V. THE WORTH COMPANY, APP
pellant. From Brunswick. No error.
Representations by vender that seed
advertised and sold by him, and which
are inspected by the vendee, are good
seed, constitute warranty and not mere
words of affirmation.
FAIRCLOTH V. BORDEN, EX'R., appel
liant. From Wayne. Error.
husband who, without objection from
the wife, receives the income from her
separate estate. is liable only for such
amount received during one year next
preceding action brought to recover such
income. Code Section 1887
Where, in such case, the husband re-
ceipted for the income of the wife as
agent" the law does not imply there
from that the wife objected to his re-
ceiving her income.
MARKHAM, Sheriff, appellant v. con-
SERVATORY OF MUSIC. From Dur
ham. No error
A conservatory of music, which occa
sionally admits the public, upon an ad-
mission fee, to entertainments by dis
tinguished specialists employed primari-
ly for the instruction and benefit of pu-
pills of the institution and not for profit
is not liable for the opera house tax
imposed by Schedule B, Section SO, Reve-
nue. Law 1901.
MORTON " w. U. TELEGRAPH COM
PANY. (Both sides appealed.) From
Onslow. Judgment for defendant.
An action for mental anguish does not
survive the death of the injured party.
As one person cannot recover for
mental anguish suffered by another, hus-
band and wife cannot Join in the same
action to recover for mental anguish suf-
fered by them respectively.
McNEILL v. DURHAM & CHARLOTTE
RAILROAD COMPANY, appellant.
From Moore. New trial.
Where, in an action against railroad
company to recover damages for person
al injuries caused by derailment of q
car in which plaintiff was a passenger,
defendants superintendent testified to
the good character and competency of
the engineer in charge, it was error to
admit upon cross examination, as bear
ing upon the engineers competency. the
question as to how many wrecks had oc-
CURED when he was in charge and the
SMITH and WIFE, appellants v. w. &
w. Railroad Company, from Robson.
| No error.
In an action against a railroad com
pany to recover damages for the reck-
| less, careless and negligent conduct of
| the defendants conductor in carrying
plaintiff beyond the point called for by
| her ticket, it appeared that the plaintiff
| Ca woman) suffered no bodily harm and
| incurred no additional expense in reach
| ing her home; that the conductor was
guilty of no rudeness and that he ex-
! planned to the plaintiff that, by reason
of his inability to signal the engineer
he was unable to stop the train Ca long
freight at the point he had agreed to
put her off, it was held that the defend
ants motion to non-suit was properly
| allowed
! Except in cases of negligence by tele-
graph company in failing to deliver mes
sages concerning personal or domestic
affairs, the doctrine of mental anguish
applies only where there has been per-
sonal injury.
ROSSER V. WESTERN UNION TELE-
| GRAPH COMPANY appellant. From
| Moore. Affirmed.
| Where, in an action against q tele-
graph company to recover damages for
| mental anguish caused by failure to de-
| liver a telegram announcing death OF
plaintiffs father, the defendant request
| ed the court to instruct the jury that
| they should use great care to distin-
guish the suffering caused by the death
! of plaintiffs father, and that caused by
| plaintiff being unable to attend the fun
eral,'> it was not error in giving such
instructions, to omit the word great
| in connection. with care"
| Where it is shown that the message
| was delivered to the defendant with
charges prepaid and was never received
| by plaintiff, a prima facie case is made
| against defendant and the burden is
| upon it to show matter in excuse of its
| failure.
| ZACHARY, appellant V. PERRY ant
| WIFE. From Wayne Affirmed.
| Where husband and wife accepted g
draft from a contractor as a payment
upon the contract price of house in
course of erection upon the wife's land
the draft being in payment of debt due
/ by the contractor to a third party fol
| material used in erecting said house
and after said acceptance the contractor
| abandoned his contract and by reason
| thereof the husband and wife ceased IL
| be indebted to him, it was held that the
party in whose favor the draft was
| drawn had no lien against the wife:
| separate estate, and that the draft anC
its acceptance by the wife did not con
| stitute charge upon said estate
Farthing " Shields, 100 N. c. 2S9; Loar
Association V. Black, 119 n. c. 923.
| COTTON MILLS, appellant V. TOWN OF
WAXHAW. From Union. Affirmed.
Cities and towns may be incorporated
by act passed in the ordinary Legislative
method.
The ratification of an Act by the pre-
| siding officers of the two Houses of tn,
General Assembly, declaring it to have
been read three times in each House, i!
| conclusive evidence of such fact; blu
| the ratification of an Act neither prove!
nor tends to prove a compliance will
Section II of Article II of the Constitu
| ton, providing that no law shall b.
passed to raise money on the credit o
the State, or pledge the faith of thu
State directly or indirectly for the pay