DENSON, J.
— The complaint in this case contains two counts, each of which claims: damages for mental pain and suffering on account of an alleged breach of a contract, between the plaintiff and the defendant, for the transmission by the latter, from Notasulga, Ala., to .the plaintiff at Montgomery, Ala., of a telegraphic message in the following language: “Notasulga, Ala., Dec. 31st, 1903. To TV. H. Rowell, Care of A. O. L..Railroad Shops, Montgomery, Ala. Come on next train your wife .is sick. J. E. Cameron.”
The averments of the complaint show that the plaintiff had arranged with Cameron to send the message; and the defendant’s agent was informed, before the mes*309sage was delivered for transmission, of this arrangement. Therefore the necessary contractual relation is shown to have existed between the plaintiff and the defendant in reference to the transmission of the message. — W U. Tel. Co. v. Cunningham, 99 Ala. 314, 14 South. 579; W. U. Tel. Co. v. Wilson, 93 Ala. 32, 9 South. 414, 30 Am. St. Rep. 23; W. U. Tel. Co. v. Adair, 115 Ala. 441, 22 South. 73; Postal Tel. Co. v. Ford, 117 Ala. 672, 23 South. 684; Member v. W. U. Tel. Co., 137 Ala. 292, 34 South. 839. It has been distinctly held by this court that, in actions of tort for the failure to deliver a telegraphic message, where there is no claim or proof of damages for physical injuries or injuries in estate, there can be no recovery of damages for mental suffering.— Blount v. W. U. Tel. Co., 126 Ala. 105, 27 South. 779. In actions for the breach of a contract (actions ex contractu) there may be a recovery for mental suffering when only nominal damages are sustained. — Blount’s Case, supra; W. U. Tel. Co. v. Blocker, 138 Ala. 484, 35 South. 46S; W. U. Tel. Co. v. Waters, 139 Ala. 656, 36 South. 773. Under a part of the oral charge of the court in this cause, which was excepted to, it was left to the jury to determine whether or not they would award punitive damages. In actions ex contractu (for the breach of a contract) the motive or intent of the defendant will not in general be considered. — 12 Am. & Eng. Ency. Law, 20, and notes 5 and 6 to the text; 13 Cyc. div. (F) 113; International Ocean Telegraph Co. v. Saunders, 32 Fla. 434, 14 South. 148, 21 L. R. A. 810; Field on Damages, § 94; 3 Parsons on Cont. 180; Lawson, Cont. § 463. The only exception to the rule seems to be in actions for breach of contract of marriage. It is also probably true that, in actions for breach of statutory bonds, that stipulate liability for damages for the vexatious prosecution of a suit, such damages may be *310recovered. — 12 Am. & Eng. Ency. Law, 21. It may therefore he important, in reviewing the oral charge of the court excepted to, to determine the nature of the complaint, for, according to the foregoing considerations and authorities, conceding, without deciding, that exemplary damages may be recovered when the action is ex delicto, if the counts are ex contractu, the oral charge ■in respect to exemplary or vindictive damages is erroneous and must work a reversal. We believe it is unnecessary to enter upon an argument to demonstrate that the counts are in assumpsit, and not in case, for a careful reading of them will show that the gravamen of each is the breach of the promise or contract made, and not the breach of a duty growing out of the contract. And the averment in the second count “that the defendant failed, willfully and wantonly, to deliver said telegram as it agreed to do,” cannot operate to change the character of the action from one ex contractu to one ex delicto. — Manker v. W. U. Tel. Co., 137 Ala. 292, 34 South. 839. Therefore the counts are each ex contractu. This conclusion is fully fortified by the following cases: W. U. Tel. Co. v. Krichbaum, 132 Ala. 535, 31 South. 607; W. U. Tel. Co. v. Waters, 139 Ala. 652, 36 South. 773, and the authorities there cited. Another view: If the counts were ex delicto (in case) then, according to the Blount Case, supra, the oral charge of the court in respect to mental anguish or suffering as an element of damages, taken in connection with the fact that there is no claim or proof whatever of any injury to the plaintiff’s person or estate, is erroneous, and a reversal would •necessarily follow.
So far Ave have not proceeded Avith regard to the order in,, which the questions here for review are presented by the assignment of errors. We deemed it necessary to first determine the nature of the action, and, there *311being no assignment of error in respect to the pleading insisted upon, which presents the question, we have considered that question in the order in which it is treated. The first, second, third, and fourth grounds in the assignment of errors are expressly waived in the brief of appellant’s counsel. To pleas 6, 7, 8, and 9, the court sustained a demurrer. These pleadings are addressed to the complaint and to each count separately. It has been observed that in each count of the complaint the message is described as addressed to the plaintiff ,“Care of the Atlantic Coast Line Railroad Shops,” Montgomery, Ala. In pleas 6 and 7, the defendant seeks to avoid liability by averring that the plaintiff was not in the city of Montgomery and was not at the Atlantic Coast Line Railroad Shops, to whose care the message was addressed, nor at his place of residence, or boarding house, in the city of Montgomery, and that the message could not therefore be delivered to the plaintiff. In Leyer v. W. U. Tel. Co., 131 N. C. 355, 42 S. E. 819, 59 L. R. A. 477, a telegram was addressed to the plaintiff, care of Southern Railway Company, Salisbury, N. C. The defendant showed that the plaintiff could not be found in Salisbury, and that the message was delivered to the ticket agent of the Southern Railway Company. The jury was instructed by the trial court that the ticket agent was a •proper agent of the Southern Railway Company, to whom a delivery of the message might be made; that a delivery to him was a delivery to the Southern Railway Company; that, as the message was directed to the plaintiff in care of the Southern Railway Company, the said company was made his agent; and that a delivery to the agent discharged the defendant from further liability on account of the message. The instruction, on appeal, was approved by the Supreme Court, speaking through Furches, C. J., upon the theory that the plain*312tiff, by having the message directed as it was, made.the company his agent to receive it; and the court held that it might have been delivered at once to that company. In support of its ruling, the court cited Western Union Tel Co. v. Houghton, 82 Tex. 561, 17 Sup. Ct. 846, 15 L. R. A. 129, 27 Am. St. Rep. 918. The substance of the decision in the case cited is that, “as the telegram was addressed to the care of another person than the addressee, a delivery to such person would have been in compliance with the obligation of the defendant.” We think these decisions are predicated upon sound principle. A prompt delivery of the message to the Atlantic Coast Line Railroad Shops — that is, to some agent of the shops — Avould have been a compliance with the defendant's contractual obligation, and it was its duty to so deliver the message. Nor was the plaintiff under any duty to give instructions .to the defendant to transmit the message to him or to notify defendant of his place of destination. In this view, the sixth, seventh, and eighth pleas here in judgment, failed to present a defense to the cause of action as stated in either of the counts, and the demurrer thereto was properly sustained.
The ninth plea varies somewhat from the averments of the sixth, seventh, and eighth pleas, and seeks to avoid liability on account of the plaintiff’s being out of the pity of Montgomery at the time the message was received by the defendant, and on account of the failure of Cameron, plaintiff’s agent, upon being notified by defendant of plaintiff’s absence, and that he was at Do-than, Ala., to send a message, or repeat the message, to the plaintiff at Dothan. It would seem to be a sufficient answer to this plea to say that the defendant’s contractual obligation Avas to deliver the message to the plaintiff, in care of the railroad- shops, and that a delivery to the shops Avould have been a complete compliance Avith *313the obligation. This case is distinguishable from that of Western Union Telegraph Company v. Seed, 115 Ala. 670, 22 South. 474. There, three messages of the same tenor were sent to the same addressee, at Mobile; one in the care of a hotel, and the other two each in the care of a friend of the addressee, and each of whom was a prominent citizen of Mobile. The telegraph company received them all, but put them in one and the same envelope, and delivered them to the clerk of the hotel. It requires no argument to show that the duty devolving upon the company was not met by that delivery, and the court properly held that it was the defendant’s duty to deliver each message according to its address. The proof showed that, if this had been done, the message would have promptly reached the addressee. In the case in judgment, as we have already shown, a delivery of the • message, at the railroad shops, to the clerk, the master mechanic, or some other agent of the shops, would have been a compliance with defendant’s contract; and especially so if, upon inquiry, it was ascertained that the plaintiff was not there; and, according to the averments of the complaint, if the defendant had made such delivery of the message, it would have been forwarded to the plaintiff. In the light of the authorities supra, it must be held that the demurrer to plea 9 was properly sustained ; and that, for the same reasons, charge 16 refused to the defendant Avas properly refused.
We come uoav to a consideration of grounds in the assignment of errors which relate to rulings on the admissibility of evidence. The evidence skoAved that the operator who received the message at Montgomery made the mistake of substituting the letter P for R, in the surname of the addressee, plaintiff, so that the address, as he took it and as he wrote it out, was W. H. Powell, instead of W. H. Rowell. When the message was received, *314it was delivered to a messenger, who carried it to the Atlantic Coast Line Railroad Shops; but, on his making inquiry for Powell, he1 was informed that no one by that name was in the employment of the shops, so he did not leave the message at the shops, but returned to the defendant with it. On the return of the plaintiff from Thomasville, Ga., whither he had gone on his regular trip as a locomotive engineer on the Atlantic Coast Line Railroad, he was informed on January 2, 1904, by some one of his fellow employes, that there had been a message there, addressed to W. H. Powell, but that informant did not know whether it was for him or not. Plaintiff, as a witness in his own behalf, was then asked what he did on receiving this information. The evidence shows that he called over the phone for connection with the Western Union Telegraph Company in Montgomery, and had a conversation with the person who answered the phone after connection was given. The plaintiff did not know who the person was who talked with him over the phone. “Courts of justice do not ignore the great improvement in the means of communication which the telephone has made. Its nature, operation, and ordinary uses are facts of general scientific knowledge, of which the courts will take judicial notice as part of public contemporary history. When a person places himself in connection with a telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conversations so held are admissible in evidence, as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on. And the fact that the person or voice of the person at the telephone was not identified does not render the conversation inadmissible. This ruling is intended to determine merely the admis*315sibility of such conversations in such circumstances, but not the effect of such evidence after its admission. That is a jury question.” — Wolfe v. Missouri Pacific Railway Co., 97 Mo. 473, 11 S. W. 49, 3 L. R. A. 539, 10 Am. St. Rep. 331. Here, the evidence tends to show that the person answering the phone, and with whom the conversation was had, under the circumstances, was one who had authority to speak for the company. Of course, whether he was not, and whether or not such a conversation was had, were questions for the jury. The evidence elicited by the conversation over the phone tended to show that the defendant was lacking in due diligence in the effort made to deliver the message. This is the theory on which, as is shown by the. bill of exceptions, the trial court admitted it with certain limitations; and we are of opinion that no error is shown in the ruling of the court in that respect.
The plaintiff’s wife was in a delicate condition, but it was not expected that she would be confined before about the 10th of January, 1904; and plaintiff had, some time in December, 1903, carried her to her mother’s home, at Notasulga, that she might be with her mother during confinement. He visited his wife on the 25th of December, 1903, and on taking leave of her on the night of the 25th, to return to his work, informed her that he would make arrangements with Mr. Cameron (his and her brother-in-law) to telegraph him should she be taken ill. He went out on his regular run, from Montgomery, Ala., to Thomasville, Ga., on the 30th of December. The wife became sick on the 31st of December, and the dispatch was received by the defendant on the same date at Montgomery; but it was never delivered to the plaintiff, nor to any one at the railroad shops. He returned to Montgomery and went to Notasulga on the 2d day of January. He found that his wife had given birth to a *316child, and was in a very nervous, restless condition. The plaintiff had made arrangements with the Atlantic Coast Line Shops to forward the telegram to him, and the evidence further showed that if it had been forwarded he would have received it in time to reach Notasulga on the evening of December 31, 1903.; whereas, he did not reach that place until the afternoon of January 2, 1904. It was competent to prove that the wife was sick .and nervous when the plaintiff reached her, and that she had been sick before he arrived there, and the declarations of the wife, made to the plaintiff Avhen he readied her, to the effect that she had been “mighty” sick and nervous, were competent for that purpose; and it was .certainly competent to prove her condition by the attending physician, Ward. The court limited such evidence to this purpose, and Ave find no error in the ruling. —Eckles & Brown v. Bates, 26 Ala. 655; Rowland v. Walker, 18 Ala. 749.
Wé come next to consider parts of the oral charge of •the. court that Avere excepted to by the defendant, and the Avritten charges refused to the defendant. The second and third written charges are bad in form, and for .this reason, if for no other, the court whs justified in refusing them. — L. & N. R. R. Co. v. Sandlin, 125 Ala. 585, 28 South. 40; Goldstein v. Leake, 138 Ala. 573, 36 South. 458. But the affirmative charge was requested and refused, and the defendant insists that it presents the same question for revieAV Avhich it sought to present ■by the second and third charges. It is averred in the first count of the complaint that the plaintiff had “instructed the general foreman of the Atlantic Coast Line Shops to open any telegram that might be delivered for him, .and to notify him (plaintiff) at once of the contents of any telegram announcing the condition of the plaintiff’s wife.” In support of the contention that the affirmaiive *317charge as to the whole case should have been given, tin1' appellant insists that there Avas no proof of this aver? ment. But this contention, Ave find, is not borne out by the record. From the plaintiff’s testimony (see page 19, Kecord) the jury Avas fully AArarranted in inferring that such an arrangement as that averred Avas made by the plaintiff. While the averment is not found in the second count of the complaint, yet the appellant con? tends that it is indispensable-to plaintiff’s case to. prove the facts contained therein to authorize a recovery on the second count. It is, in vieiv of what has been said as to the state of the proof, unnecessary for us to express any opinion as to the indispensableness of such proof, in the absence of the aArerment in the second count. So; on the theory of lack of proof of the averment, this contention of the appellant is unavailing. _ >
- Next, it is insisted that as the telegram was addressed to the plaintiff, care of the Atlantic Coast Line Kailroad Shops, the plaintiff being absent, under- the pleadings and proof, the receipt of the message by the plaintiff, eAren though it had been promptly delivered to the-shops, depended on the act of a person over whom the defendant had no control; and that, as there can be no certainty as to Avhether the telegram Avould have been sent or delivered to the plaintiff by such person, the plaintiff has shown no right of recovery. The duty of the defendant was to deliver the message to the plaintiff, if ■found, and, if not found, then to the shops. Nothing short of this Avould have been a compliance with the contract made to deliver the message; and this contractual obligation, as the evidence tends to shoAV, could have been easily complied with. To adopt the defendant's insistence Avould be to alloAV telegraph companies immunity from liability Avhen telegrams are addressed as Avas the one here, by mere speculation as to Avhat *318would be the conduct of a trusted agent of the sendee under agreement to forward such telegrams; more than that, it would necessarily involve the presumption that the agent of the sendee would act in bad faith towards him. Appellant in its brief says that this insistence presents an interesting question and one which has never been passed upon by this court. It is an interesting question; but, while the precise question may never have been considered by the court, we think that this court, in the case of Western Union Telegraph Company v. Henderson, 89 Ala. 510, 520, 7 South. 419, 18 Am. St. Rep. 148, has laid down the principle contrary to the insistence of the appellant. In that case an urgent telegram was sent by the plaintiff to a physician who lived in a village five miles distant from the plaintiff’s home, calling him to come and see plaintiff’s wife. The telegraph company sought to prove, in defense of a suit for failure to deliver, that it was not the custom of the physician to make professional calls at a distance without prepayment of his charges. On objection, the proof was disallowed. Reviewing the ruling, the court, through Stone, O. J., said: “There was no error in this. If the doctor lived within the area of free delivery (about which there was conflict in the evidence), it was not for the telegraphic operator to speculate on the chances that the summons would or would not be obeyed.” So we say, here, the duty of the defendant was to deliver the telegram to the shops, in the absence of the plaintiff, and it had no right to speculate on the chances that the shops would or Avould not forward the same to the plaintiff. Moreover, Ave think the proof affords a reasonable inference that if the telegram, properly addressed as the operator (Reeves) swore he sent it from Notasulga, had been delivered at the shops, the natural consequence would have been the forAvarding of it to the plaintiff. At *319least, the defendant should not be allowed to speculate, in the face of an agreement made between the plaintiff and his agent there, that it would not have been forwarded. The cases from other states, cited by appellant, do not, when submitted to critical examination, conflict with our views. On these considerations, the general affirmative charge and special charges 8 and 14, refused to the defendant, were properly refused.
The remaining charges to be considered relate to the measure of damages in respect to mental suffering. Whatever may be the decisions of other courts, this-court is committed to the doctrine that, in actions of this character, damages for mental suffering may be awarded. But this doctrine finds ample support in the decisions of other respectable courts. “The cases rest upon the reasonable doctrine that where a person contracts, upon a sufficient consideration, to do a particular thing, the failure to do which may result in anguish and distress of mind on the part of the other contracting party, he is presumed to have contracted with reference to the payment of damages of that character in the event such damages accrue by reason of a breach of the contract on his part.” Here, the agent of the defendant, at Notasulga, was acquainted with Mrs. Kowell’s condition, and the plaintiff had notified him as to the importance of the telegram; and when it was received by the defendant at Montgomery it heralded its own importance, the urgency of an early delivery, the relations of' the parties, and that, as a natural consequence of a fail-use to deliver it, the plaintiff would probably endure great mental suffering. So it may be said that mental suffering on the part of the plaintiff was the proximate consequence of the failure to deliver the message. — W. U. Tel. Co. v. Henderson, supra; W. U. Tel. Co. v. Manker, 145 Ala. 418, 41 South. 850; Renihan v. Wright, 125 *320Ind. 536, 25 N. E. 822, 9 L. R. A. 514, 21 Am. St. Rep 249; W. U. Tel. Co. v. Broesche, 72 Tex. 654, 10 S. W. 734, 13 Am. St. Rep. 843; Hale v. Bonner, 82 Tex. 33, 17 S. W. 605, 14 L. R. A. 336, 27 Am. St. Rep. 850. In No. 6 of 64 Central Law Journal (108), see a review of the authorities pro and con this doctrine. The plaintiff did not know the condition of his wife until the afternoon ’of the 2d of January, and the proof tended to show that if the telegram had been addressed to W. H. Rowell, and delivered promptly to the Atlantic Coast Line Shops, in Montgomery, it Avould have been forAvarded, and plaintiff could have reached his wife on the night bf the 31st of December. • •’
The court, in respect to mental suffering as an element of damages, instructed the jury orally as folloAArs!: ‘:‘If Avhen the plaintiff learned that by reason of the negligence of the defendant, if there Avas' negligence, he had 'been kept aAvay from the bedside of his Avife Avhile shb Was sick, when it was his desire and wish to be with her, and do Avhat he could for the relief of her suffering, after he realized that, then, in a retrospective and reflective way, he may have suffered mental anguish, because he had been kept away from her bedside.” We have been unable to find error in this statement. It does not convey the idea that there might be recovery for the Avife’s suffering, as appellant’s counsel seem to assume; nor does it embrace the idea of mental suffering by plaintiff before be reached Notasulga. Yet it may be, in the light of the facts in evidence, that the plaintiff did endure such suffering before reaching Notasulga, which might properly be considered in estimating the damages. The charge is a partial explanation of the operation of the human mind, and it may be that it is one not embracing a legal principle — that it is one more directly connected Avith the realm or science of psychology, and about which *321the jurors may have been as well informed as was the court. But this does not make the charge reversible error, or error at all. We can readily see how a husband might be greatly grieved by reflecting upon the fact that his wife had been ill, and in need of his consoling presence, for two days, and that, but for the negligence of a telegraph company in failing to deliver a telegram, he might have been with her, to minister to her and render her assistance and consolation. On these considerations tliq qourt committed no error in the oral charge under con; sideration. Nor was there error in refusing written, Charges 4, 5, 6, 7, 9, 10,11,13 and 15.
Written charge 12 is in this language: “If the- jury believe the evidence'in this case, they cannot assess any damages in favor of the plaintiff because of any anxiety Or mental distress he may have sustained by reason of his wife’s sufferings.” This charge was properly refused, if for no other reason, for that, in view of the evidence, it is misleading. While recovery could not be had for mental suffering based merely on the wife’s suffering and superinduced by it alone, yet the suffering ajad condition of the wife is a factor to be considered by the jury, in connection with the conduct of the company, in arriving at their conclusion as to whether the plaintiff endured mental suffering as a proximate result consequent upon a breach of the defendant’s contract with the plaintiff to deliver the telegram, and the jury, by this charge, might have been misled into the belief that her suffering and condition should be excluded entirely.
We have given consideration to all the questions pressed in the argument of appellant’s counsel.
. For the errors pointed out, the judgment of the court below is reversed, and the cause is remanded.
Beversed and remanded.
■.'Tyson, C. J., and Simpson .and Anderson, JJ., con-; cur.