49 So. 91 | Ala. | 1909
This action is by a husband, against a telegraph company, to recover damages for failure to promptly transmit and deliver a telegram sent by him to a physician, summoning the physician to the bedside of plaintiff’s wife, who was very ill, by reason of which failure to so transmit and deliver the message the physician was unable to reach the bedside of plaintiff’s sick wife as soon as he otherwise would have done, but for the failure.
“Count One. The plaintiff claims of the defendant corporation one thousand dollars as damages for that on, to wit, the 30th day of September, 1906, plaintiff by his agent delivered to the defendant, and the defendant accepted, at Oneonta, Ala., for transmission from Oneonta to Birmingham, Jefferson county, Ala., the following message directed to Dr. Whaley, care Barber’s Drug Store, Birmingham, Alabama, viz.: ‘Come on morning train. Bessie is much worse.’ Plaintiff avers that defendant is a public telegraph company, engaged in the business of transmitting messages for a reward between said points of Oneonta and Birmingham, Ala., and the plaintiff paid the defendant a reward for the transmission of said message, to wit, twenty-five cents. Plaintiff avers further that said message could have been transmitted and delivered by proper and reasonable diligence in time for Dr. Whaley to have reached Oneonta on the morning train and to have been present with the said Bessie, plaintiff’s wife, the person mentioned as sick in the message above set out, and who then needed the presence and assistance of the said Dr. Whaley. Plaintiff avers further that, by reason of the failure of the defendant to transmit said message within a reasonable time and to deliver the same within a reasonable time and as a proximate consequence thereof, Dr. Whaley failed to reach Oneonta on the morning train, as requested, and plaintiff’s wife was without his attention, and plaintiff suffered great mental pain by reason of the failure of the said Dr. Whaley to reach and attend his wife while ill, to his great damage in the sum of one thousand dollars as aforesaid. The said mental pain and anguish so suffered by plaintiff was all the proximate result and consequence of the failure of the defendant to deliver the message within a reasonable time, as it could and should have done.”
It is. first insisted that the court erred in overruling defendant’s demurrers to the complaint. The complaint is certainly not subject to any ground of demurrer assigned.--Henderson’s Case, 89 Ala. 510, 7 South. 419, 18 Am. St. Rep. 148; Wilson’s Case, 93 Ala. 32, 9 South. 414, 30 Am. St. Rep. 23. The grounds ássigned are inapt to raise the question as to whether the complaint' is ex contractu or ex delicto.
The appellant '(defendant) requested the court in writing to hold, and to instruct the jury, that it was am action ex contractu, and the court granted the request and instructed'the jury accordingly. The defendant then requested the court in writing to instruct 'the jury that the action was ex delicto, which 'the court very properly declined tó dó. 'A party who has invoked a particular action ór ruling on the part of the trial' court will not be heard to compláin iñ this court' of such action or rul
Whether or not Dr. Whaley could or would have gone on the 8:25 train if the message had been transmitted and delivered within a reasonable' time, and whether it was so transmitted and delivered within a reasonable time, were clearly questions to be determined by the jury from the evidence, under proper instructions by the court. They were questions of fact, and there was evidence tending to show each, and from this evidence the jury could infer the existence of these facts, and of all others necessary to support a verdict and judgment for plaintiff. Hence the general affirmative charge for the defendant, and all other charges hypothesizing a verdict for defendant, upon failure of the proof as to either one of these facts, were properly refused. It would have been palpable error for the court to take from the jury the determination of these facts under the evidence in this case. 5 Mayfield’s Dig. p. 150. Whether the doctor would have received the message in time to go to Oneonta on the first train, and whether he would have so gone had he received the message, provided the company had exercised due diligence, are questions which naturally and necessarily rest in inference from the facts proven, and the jury only is the proper tribunal to draw or fail to draw such inferences.
There was ample evidence from which the jury might have inferred these other facts which rest peculiarly, if not exclusively, in inference, and which were necessary
The fourth charge was bad, for several reasons; One, for that it invaded the province of the jury; another, for that it instructed the jury that they were not authorized to presume or infer mental pain from only a part of the evidence. The best that can be said of it is that it is nothing more than an argument. — King v. Pope, 28 Ala. 601; Marx v. Bell, 48 Ala. 497; Miller v. Garrett, 35 Ala. 96; Edgar v. McArn, 22 Ala. 796; Pritchertt v. Munroe, 22 Ala. 501; McWilliams v. Rodgers, 56 Ala. 87; Callan v. McDaniel, 72 Ala. 96.
We find no error in the record, and the judgment of the trial court must be affirmed.
Affirmed.