49 So. 351 | Ala. | 1909
The plaintiff attempted to state her case in several counts, but demurrers were sustained to all except the sixth, upon which trial was had, resulting in verdict and judgment for the plaintiff, and the defendant has appealed.
According to the rules for determining whether a count states a cause of action ex contractu or ex delicto, we experience no difficulty in holding that the sixth count is ex delicto. — Wilkinson v. Moseley, 18 Ala. 288; Whilden v. Bank, 64 Ala. 1, 38 Am. Rep. 1; Sharpe v. National Bank, 87 Ala. 644, 7 South. 106; Britt v. Pitts, 111Ala. 402-406, 20 South. 484.
Plaintiff resided with her husband in Gadsden, Ala. The husband, while on a visit in the state of Mississippi,
The first insistence of the appellant is that the general affirmative charge by it requested in writing should have been given, because of a variance between the allegata and probata.' The precise point is that, whereas the allegations of the complaint are that the ticket was purchased of the defendant, its agent or servant, the proof showed that it was purchased from an agent of the Southern Railway Company, at West Point, Miss., and there was no proof showing that that company was defendant’s agent or servant; but the proof showed that the Alabama Great Southern Railroad Company, the company over whose road the corpse was shipped from West Point, Miss., to Attalla, had an arrangement with the defendant, by which it could sell passenger tickets over its own road, with coupon attached good for passage over defendant’s line. Christopher, it is true, testified to the purchase of the ticket from the agent of the Southern Railroad Company; but he brought the corpse over the Alabama Great Southern Railroad from West Point to Attalla, in the baggage car, on the ticket, the ticket having attached thereto a coupon good for the carriage of the corpse from Attalla to Gadsden. The ticket or coupon was offered in evidence, and on its face it purports to have been issued by the Alabama Great Southern Railroad Company. Furthermore, when the ticket was offered to the defendant’s conductor, at Attalla, with
It is next insisted that the defendant did not refuse to carry the corpse, but only declined to carry it on a passenger car, making the point at the time that it carried corpses only on a trailer. We need not consume time in discussing the rulings of the court, against the defendant, on the admissibility of evidence in respect to custom of the defendant in carrying corpses on passenger cars, or to the rule of the defendant against so carrying them; for the court in effect ruled out such evidence and confined the plaintiff to the right to have the corpse shipped on the trailer. The right, we have seen, the defendant did not dispute, and was willing to carry the corpse on the trailer; but, as an excuse for not carrying it at once, defendant explained that a car of slag, which had been sent out on the road that morning, was broken down or wrecked, by reason of which it was unable to say at what time the-road would be clear so that its trailer could pass. When the parties in charge of the corpse were told by defendant’s superintendent that he did not know" how long it w"ould be until the corpse could be carried through, they suggested getting an ambulance from
We have no doubt that; in a case of this kind, the widow, upon proof of negligence or of breach of duty on the part of the defendant, might recover for mental anguish, if any, suffered on account of the delay or the failure in the transporting of the remains of her husband. — L. & W. R. R. Co. v. Hull, 113 Ky. 561, 68 S. W. 433, 57 L. R. A. 771) ; but the proof in this case without conflict shows that the funeral was appointed for three o’clock p. m., that the corpse arrived at plaintiff’s residence not later than 2 p. m., and that plaintiff, of her own accord, asked that the funeral should be postponed until the following day. The proof also shows that the corpse was prepared for burial at the time. True, 15 or 20 persons, who had been waiting at the residence, departed before the corpse arrived; but it was shown that as many remained, and we cannot assume that the funeral or burial of plaintiff’s husband would, not have been attended by as many people as were originally at the residence waiting. Therefore the court is of the opinion that the plan-tiff was not entitled to damages for mental anguish claimed to have been suffered on account of the postponement of the funeral.
Nor do we think that damages should have been allowed for the re-embalming of the body, as that was ne
Beversed and remanded.