62 So. 744 | Ala. | 1913
— In some cases it has been held that there can be no recovery for mental anguish where the negligence of the defendant telegraph company merely causes a prolongation of mental anguish already existing, hut which a delivery of the message would have relieved. — 37 Cyc. 1786; Sparkman v. Western Union Co., 130 N. C. 447, 41 S. E. 881; Rowell v. Western Union Co., 75 Tex. 26, 12 S. W. 534, and other Texas cases. On the other hand, several very respectable courts have failed to appreciate a distinction between the production of mental anguish and the prolongation of same, and we agree with these courts, in the holding that the distinction attempted by the Texas Court and adopted by the North Carolina court is too shadowy, and in legal and physical results is merely imaginary. — Western Union Co. v. Hollingsworth, 83 Ark. 39, 102 S. W. 681, 11 L. R. A. (N. S.) 497, 119 Am. St. Rep. 105, 13 Ann. Cas. 397; Dayvis v. Western Union Co., 139 N. C.
We have also held that in order for the plaintiff to recover for mental anguish the damage must have been within the contemplation of the parties, and that there can be no recovery on this ground unless the telegraph company had notice, from the language of the message or otherwise, that by reason of its negligence or default such damages would be likely to result. — Westmoreland's Case, 151 Ala. 319, 44 South. 382; 37 Cyc. 1780. We are of the opinion that the plaintiff’s complaint makes out a case for the recovery of damages for mental anguish and brings her within the protection of the rule as sanctioned in this jurisdiction. It is addressed to the mother of a child, to whose life or safety it refers, and carries notice on its face that a negligent failure to deliver same .will likely prolong or increase the mental anguish of the mother, the sendee, and for whose benefit it was sent, and the trial court erred in sustaining the defendant’s motion to strike this claim for damages from the complaint.
Reversed and remanded.