{ "id": 8559843, "name": "EDITH M. MONTGOMERY v. MONROE TELEPHONE COMPANY, INC.", "name_abbreviation": "Montgomery v. Monroe Telephone Co.", "decision_date": "1962-11-21", "docket_number": "", "first_page": "172", "last_page": "174", "citations": [ { "type": "official", "cite": "258 N.C. 172" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "75 S.E. 2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612130 ], "opinion_index": 0, "case_paths": [ "/nc/237/0396-01" ] }, { "cite": "167 S.E. 847", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "204 N.C. 252", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615846 ], "opinion_index": 0, "case_paths": [ "/nc/204/0252-01" ] } ], "analysis": { "cardinality": 408, "char_count": 7391, "ocr_confidence": 0.525, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20612842679245005 }, "sha256": "91c6ebda315ca45b120b9c562d7777e07be88f4360ec728f570cfb73158859c9", "simhash": "1:7927ccfbb153d4d3", "word_count": 1251 }, "last_updated": "2023-07-14T19:21:31.620483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EDITH M. MONTGOMERY v. MONROE TELEPHONE COMPANY, INC." ], "opinions": [ { "text": "Per Curiam.\nThe theory of plaintiff\u2019s action, as alleged in her complaint and as contended in the trial and here, is that lightning was conducted over defendant\u2019s telephone wire and into the receiver of the telephone while she was talking over it due to defendant\u2019s negligence, and this was the proximate cause of her injuries. And yet when we examine the evidence, plaintiff has offered no evidence, either direct or circumstantial, of any electrical storm or lightning anywhere, or of any lightning being conducted over its wires into the telephone she was using in February, or that she was injured by lightning. She testified she heard no thunder and saw no lightning. The testimony of J. L. Broom that plaintiff told them \u201cwhen the pop of lightning struck\u201d seems the statement of an opinion or conclusion and not a fact, when considered in the light of plaintiff\u2019s positive testimony at the trial.\nIn Lynch v. Telephone Co., 204 N.C. 252, 167 S.E. 847, relied on by plaintiff, there was evidence that an electrical storm was going on in June, and that a witness saw a bolt of lightning about 50 yards from the telephone pole, and saw it on the wire that came in the house probably about 50 yards from the house. In addition, defendant in its answer admitted plaintiff was struck by lightning.\nEven conceding arguendo that an excessive current of electricity came into the receiver of the telephone plaintiff was using and injured her, because of defendant\u2019s negligence in the installation of the telephone equipment, plaintiff has offered no evidence the electricity was lightning or caused by lightning. If a plaintiff is to succeed at all, he must succeed on the case set forth in his complaint, and his proof must correspond substantially with his allegations. Wilkins v. Finance Co., 237 N.C. 396, 75 S.E. 2d 118.\nPlaintiff\u2019s assignment of error to the judge\u2019s exclusion of evidence to the effect that the telephone in plaintiff\u2019s home continually growled with static from the date of its installation in October 1958, and that when defendant in March 1962 installed new equipment, the static ceased, and when an electrical storm would appear, the telephone would go dead, and no harm would occur to persons in the house, is overruled, for even if it was competent, which it is not necessary for us to decide, it would not benefit plaintiff here by reason of her failure to show there was any lightning or electrical storm at the time of her injury and that her injury was caused by lightning, as she alleges in her complaint.\nThe judgment of involuntary nonsuit below is\nAffirmed.", "type": "majority", "author": "Per Curiam." } ], "attorneys": [ "Coble Funderburk for 'plaintiff appellant.", "Carpenter, Webb & Golding by William B. Webb for defendant appellee." ], "corrections": "", "head_matter": "EDITH M. MONTGOMERY v. MONROE TELEPHONE COMPANY, INC.\n(Filed 21 November 1962.)\n1. Pleadings \u00a7 28\u2014\nPlaintiff must recover, if at all, in accordance with tbe allegations of tbe complaint, and plaintiff\u2019s proof must correspond substantially thereto.\n2. Telephone Companies \u00a7 4\u2014\nWhere plaintiff\u2019s allegations are to the effect that she was injured while talking on the telephone by electricity from a bolt of lightning traveling over telephone wires, and that the injury occurred because of defendant telephone company\u2019s negligence in improperly installing the telephone equipment, but plaintiff introduces no competent evidence of any electrical storm or any lightning anywhere or any lightning being inducted over the telephone wires, nonsuit is proper.\nS. Appeal and Error \u00a7 41\u2014\nIf judgment of nonsuit would have to be sutained even though certain of plaintiff\u2019s evidence had been admitted, the exclusion of such evidence, even if competent, cannot be prejudicial.\nAppeal by plaintiff from McConnell, J., August 1962 \u201cA\u201d Civil Term of UNION.\nCivil action to recover damages for personal injuries.\nPlaintiff alleged in her complaint in substance: Defendant installed and furnished for its customary charges telephone service in the home where she was living with her husband. About 12:30 p.m. on 18 February I960, while she was talking over the telephone with a friend, Mrs. Parks Williams, who lived about six or seven miles away, a thundercloud gathered near the home of the plaintiff and a bolt of lightning struck somewhere in the close proximity of the plaintiff\u2019s house and followed the wiring of the defendant\u2019s telephone system through the fuse and through the lead-in wire to the telephone the plaintiff had in her hand and was talking through, and the bolt of lightning was not shunted into the ground because defendant had installed a defective lightning arrester, or that a bolt of lightning struck the lines of the Union Electric Membership Corporation and followed them into plaintiff\u2019s house, where it was transmitted over the telephone line to the ear piece which plaintiff was using, because of defendant\u2019s negligence in the improper installation of the telephone equipment. \u201cThe bolt of lightning passed out of the ear piece into the plaintiff\u2019s right ear and on to the right side of the plaintiff\u2019s face with such force and power that it knocked her down and rendered her unconscious.\u201d\nDefendant in its answer denies that it was negligent in the installation of its telephone in plaintiff\u2019s home, and denies that any lightning occurred and was conveyed by its wires, or any wires, into the telephone in plaintiff\u2019s home thereby injuring her.\nPlaintiff testified in substance: When she was talking to Mrs. Williams she noticed it got real dark outside. It was raining. She did not see or hear any thunder or lightning. When she was talking over the telephone, it seemed like a cloud was rolling in on her, and the next thing she remembers she was on the floor, and it was about 1:30 p.m. Her right ear drum was ruptured and her face was scorched.\nWhen she recovered consciousness she left her home, and went through the rain across the road to the home of Mr. and Mrs. J. L. Broom. J. L. Broom testified she told them, \u201cshe was telephoning Mrs. Williams, I believe, and lightened (sic) or something, when the pop of lightning struck, it knocked her out for I guess forty minutes.\u201d When she reached the Broom home, the side of her face was reddish-blue like, and her hair looked like it was swinged some.\nPlaintiff returned to her home about 3:00 p.m. At that time the telephone was dead, and the receiver was hanging to the floor. That afternoon a repairman from defendant came to the house. When he came in, he said: \u201cWell, the fuse is not even blown; the fuse is not even burned out.\u201d Pie took the telephone apart, and the receiver and it was completely burned out. He replaced cords everywhere.\nMrs. Parks Williams testified in respect to her conversation with plaintiff: \u201cI guess we talked for about a minute or maybe two minutes and it was raining at my house, but the clouds wasn\u2019t too bad and all of a sudden she says to me she says, \u2018There is a terrible noise over my house\u2019 says \u2018It sounds like a storm.\u2019 And so I thought she had hung up the receiver although it made a terrible noise in my ear which really did frighten me. The noise was just more or less a popping noise, just real loud popping noise.\u201d\nPlaintiff offered voluminous evidence in respect to the wiring of the telephone equipment and the lightning arrester installed by defendant.\nAt the close of plaintiff\u2019s case, the court entered a judgment of compulsory nonsuit, from which plaintiff appeals.\nCoble Funderburk for 'plaintiff appellant.\nCarpenter, Webb & Golding by William B. Webb for defendant appellee." }, "file_name": "0172-01", "first_page_order": 212, "last_page_order": 214 }