Western Union Tel. Co. v. Crowley, 48 So. 381

48 So. 381 | Ala. | 1909

ANDERSON, J.

The motion of the defendant to strike certain parts of the complaint as elements of damage is not revisable upon appeal, since the same can be eliminated, if not recoverable, by objection to the evidence or special charge. — Woodstock Co. v. Stockdale. 143 Ala. 550, 39 South. 335, and cases there cited.

It is true tlie plaintiff had to show that the defendant could have delivered the message to the sendee, and it is insisted hy counsel that there was no proof that Mrs, Johnson was at her home between the delivery of the telegram to the defendant at Birmingham and the arrival of the plaintiff at Berry. But we think the jury could have inferred from the evidence that the sendee would have been found, had then' been a transmission and an attempt to deliver. Her house was very near the defendant’s office, and she received the message sent the night before, wherein she was warned to expect the one in question. Hhe was the grandmother of the dead child, and knew that it would be buried at Berry; and it would be rather a violent presumption to "presume” that she left her home town during this interval under the peculiar circumstances. These fads were not shown in the McMorris Case, supra, 563, 48 South. 349, and it is therefore distinguishable from the case at bar.

The trial court did not err in refusing the general charge requested by the defendant. The jury was authorized to infer, from the plaintiff’s evidence, that the failure to transmit the message until it was called for by the operator at Berry the next day was so grossly negligent as to evince an utter disregard of the feelings and rights of the plaintiff. — Western Union Tel. Co. v. Cunningham, 99 Ala. 314, 14 South. 579; Western Union Tel. Co. v. Seed, 115 Ala. 676, 22 South. 474. The message upon its face suggested the importance of a delivery before the plaintiff’s arrival that afternoon, and especially was such the case when taken in connection with the one transmitted the night before. There was also evidence that the wires were in order, and yet no transmission of the message for over 24 hours after its delivery, and then only after it was called for by the operator at the other end of the line. The defendant attempted to excuse the falure by showing that its line was out of fix; but this was a question for the jury, as Collins testified, that the wires were in order. Moreover, the defendant’s evidence shows that its own local wire was open from 8 a. nr, to 11:8 a. m., more than three hours from the delivery of the message at 8:06 a. nr

, The case of Western Onion Tel. Co. v. Westmoreland, 151 Ala. 319, 44 South. 382, dealt with a . social message and expressly states that it was not shown that the delay arose, from any willful or malicious act, and in discussing the character of cases which would not support punitive damages expressly differentiated the Heed Case therefrom. The facts in the case at bar. are perhaps stronger in support of punitive damages than those in the Reed Vase, in so far as the misconduct of defendant’s servants is concerned. There the defendant made a partial attempt, in that the message was transmitted to Mobile, and the misconduct consisted in a mere failure to deliver. Here* there was evidence from which the jury could infer that the defendant’s servants held the message in the sending office for more than 24 hours without the slightest effort to transmit same, notwithstanding the wires were- open all the time according to plaintiff’s theory, and for.over three hours according to the defendant’s evidence.

The Irial court did not err in refusing charge 19, requested by the defendant. The telegram notified the sendee when to expect the plaintiff with the remains of his child, and imported upon its face that it was for the purpose of having the funeral arrangements made before his arrival, and it cannot be said that he did not suffer mental anguish when he reached Berry and learned that no arrangements had been made and that none of his friends or relatives met him at the depot. It is true there was no direct proof that the grave would have been dug, or liis friends and relatives would have met him; but the jury could easily infer that such would have been the case, had the telegram been delivered. The sendee was the grandmother of the dead child, and it is not a violent presumption to infer that she and others in the village where the plaintiff and his wife’s family resided would have made all arrangements for the burial and met them upon their arrival, and by their sympathy and assistance alleviated to some extent the anguish and pain incident, to their sad journey. — Western Union Tel. Co. v. Long, 148 Ala. 202, 41 South. 965.

Theli trial court did not err in refusing charges 5, 8, 12,13,14,15, 36, 37, 3S, and 19, resuested by the defendant.

Affirmed.

The only errors assigned by the appellee on the cross-assignment, as provided by rule 3, relate to charges refused the plaintiff. They embrace the general charge, and all the others sought to fasten a liability on the defendant, regardless of the condition of its wires, and, as the jury found for the plaintiff, the refusal of these charges was of no detriment to him. The judgment of the city court is therefore affirmed in all respects, and the defendant in the court below is taxed with all the costs, as there was no separate appeal by the plaintiff, but a mere consent assignment of errors on the defendant’s appeal under rule 3.

Affirmed

Dowdell, Denson, and McClellan, JJ., concur.