Western Union Telegragh Co. v. McMorris, 48 So. 349

48 So. 349 | Ala. | 1908

DENSON, J.

The appellee, as plaintiff in the court below, recovered of the appellant, Western Union Telegraph Company, a judgment in the sum of $300 for mental anguish alleged to have been suffered on account of breach of contract to promptly transmit and deliver a telegraphic message in the following words and figures: “Bock Springs, Ala. 9/7/1907. Mr. A. Kanter and P. C. Dennis, Clanton, Ala. Caldwell died last night. Will be down with remains this evening. Open grave on our lot. [Signed] B. Y. McMorris.” The principal facts of the case may be summarized as follows:

Plaintiff boarded a Louisville & Nashville Railroad train at 11:47 a. m. Saturday, September 7, 1907, at Rock Springs, in Etowah county, Ala., with his deceased brother’s remains, carrying them to Clanton, in Chilton county, Ala., for interment in the family burial ground; the brother having died Friday night. Plaintiff and his brother had formerly lived at Clanton and were well known there, and at. this time a sister of theirs and their stepmother were residing at that place; the sister being the wife of a son of P. O. Dennis. Kanter had been a friend of the McMorris family for a long time, and he and the deceased had been roommates for a year or two. When plaintiff arrived at Clanton with the remains of his brother, at 6:00 p. m., Saturday, he found no one at the station to meet him, and that no one knew of his coining or was expecting him. The grave had not been opened, nor had the funeral arrangements been made. The funeral and interment did not occur until about 4 o’clock Sunday afternoon. After plaintiff got off the train at Clanton, Mr. C'urry approached plaintiff and was informed by him that his brother’s remains were on the train. Then plaintiff, with Curry, Van Derveer, and “one or two others,” took the remains out of the express car, placed them on the express truck, and carried them up in front of the depot, where plaintiff stood by the remains 20 or 30 minutes, until P. O. Dennis got to the depot. Dennis and plaintiff then went to a livery stable and procured a wagon, and carried the remains to a hotel, where plaintiff’s stepmother was boarding, about 100 yards from the depot. Forty-five minutes elapsed from the time the remains arrived at the depot before they were deposited at the hotel. On Sunday morning ■about 9 o’clock tlu: funeral arrangements were made, and at 11 o’clock they were announced at church services in Clanton. On the same morning plaintiff and P. O. Dennis obtained the necessary material and had it carried to the cemetery, and employed a negro man to open the grave and line it with brick, as desired by plaintiff. The remains of the decea.-ed brother were carried to the grave, where funeral services were held, and the interment took place at 4 o’clock in the afternoon; a minister of the gospel officiating.

The plaintiff testified: “A good many people were at the funeral. We had such carriages and such open vehicles as could he obtained on Sunday morning in tin1 town of Clanton.” It was raining when the burial took place, but no rain had .fallen in the morning. The body was in a good state of preservation at the time of the burial. Deceased had died of inflammatory rheumatism, and decomposition did not set in quickly. The plaintiff is a man, being at the time of the death of his brother 29 years of age, and the deceased was a man 34 years of age. Neither Kanter nor Dennis were related to plaintiff or deceased, but had been acquainted with them for 10 years. The message was not delivered until Monday, the day subsequent to that on which the burial took place; nor had the sendees any notice of the death of the deceased until after the plaintiff, accompanying the remains, reached Clanton Saturday afternoon. At the time the defendant company’s agent received the telegram for transmission (9:10 a. m., Saturday) he knew that “Caldwell,” referred to in the message, was the brother of plaintiff, the sender of the message. Plaintiff paid defendant’s operator at Rock Springs about 40 cents toll for the transmission of the message. The message was delivered to the Rock Springs operator, for the plaintiff, by a Mr. Howard, at said hour and date, and within 20 minutes it was transmitted to Anniston; the usual route of messages to Clanton being via Anniston and Birmingham, Ala. — that is to say, from Anniston the messages were repeated to Birmingham, and from the latter point to Clanton — and the time usually necessary for the transmission of a message over said route being 20 minutes.

Phillips, the operator at Rock Springs, testified: “While the gentleman who delivered the message for transmission was in the office, T said: ‘You tell Mr. McMorris 1 got the message off; but it is going to be subject to delay, I think, on account of the strike.’ ” Howard testified that, when he delivered the message to Phillips, he told him that McMorris said to get it off as quickly as he could, and that Phillips replied, “Certainly.” Odie plaintiff testified that when he went to the station at Rock Springs to take the train, about 11 o’clock Saturday morning, he asked Phillips if he got the message off, and the he replied: “Yes, I tric'd to get it off as soon as Howard delivered it to me; but the wires were busy, and I did not get it off right them, but did get it off a few minutes later.”

While it is probably in accordance with the decisions of a majority of the state courts that 'mental anguish and wounded feedings, alone and unaccompanied by personal injury, do not furnish ground for recovery of damages, yet in this jurisdiction the' contrary view prevails, as it does in a number of other states. — Western, etc., Co. v. Henderson, 89 Ala. 510, 7 South. 419, 18 Am. St. Rep. 148; Western, etc., Co. v. Haley, 143 Ala. 586, 39 South. 386; Western, etc. Co. v. Whitson, 145 Ala. 426, 41 South. 405; Western, etc., Co. v. Merrill, 144 Ala. 618, 39 South. 121; Western, etc., Co. v. Long, 148 Ala. 202, 41 South. 965. Perhaps the strongest and most satisfactory reasoning in support of the doctrine that mental anguish withoiit accompying personal injury affords ground for recoverable damages is to be found in the case of Mentzer v. Western Union Tel. Co., 93 Iowa, 752, 62 N. W. 1, 28 L. R. A. 72, 57 Am. St. Rep. 294. The appellant, conceding that .the law in this state is settled as above stated, yet contends that the undisputed testimony in the present case does not afford basis for a reasonable inference that the plaintiff suffered mental anguish. It is true no witness — not even plaintiff himself — testified directly that plaintiff suffered mental pain or anguish. So we have for determination the question: Was that an indispensable prerequisite to the right of the plaintiff to have the jury consider mental suffering as an element of recoverable damages?

In cases of physical injury it has been held that mental suffering cannot be dissociated from physical pain, and where the latter is found the former is implied.— Montgomery, etc., Co. v. Mallette, 92 Ala. 209, 217, 9 South. 363. Therefore in that class of cases direct proof of mental suffering is not required, to entitle a plaintiff to recover for such. — International, etc., Co. v. Mitchell (Tex. Civ. App.) 60 S. W. 996. And it may be stated to be the rule generally, in Alabama, that, in cases where wounded feelings or mental pain form an element of recoverable damages, direct proof of such suffering is not necessary, but it may be inferred by the jury from circumstances attending the particular breach of duty or contract (City Nat. Bank v. Jeffries, 73 Ala. 183, 193; see, also, Trinity, etc., R. Co. v. O’Brien, 18 Tex. Civ. App. 690, 46 S. W. 389; 13 Cyc. 205) ; although in a telegraph case it has been held that the natural utterances and expressions indicative of pleasure, displeasure, pain,, or suffering are competent original evidence that may be received in proof of the physical or mental state they signify, whenever that state is a pertinent inquiry. Western, etc., Co. v. Henderson, supra.

In recognition of the well-established rule that “when two parties have made a contract, which one of them has broken, the damages which the other ought to have for such breach should be such as may fairly and reasonably be considered as arising naturally from such breach, or as may reasonably be supposed to have been in the contemplation of the parties at the inception of the contract as the possible result of a breach of it,” this court said : “When the sender of a message has the right to sue a telegraph company for breach of contract in failing to deliver the message, he can also recover damages for mental anguish of which said failure was the proximate consequence.” — Western, etc., Co. v. Henderson, supra. Under this rule the mental anguish which may be said to arise naturally and proximately from the breacli of contracts to transmit telegraphic messages is limited to certain, degrees of relationship; and, without here stopping to define the extent of the limitation, it suffices to say that that of brothers falls within the degree recognized by the rule. — Western, etc., Co. v. Haley, 143 Ala. 586, 39 South. 386.

Here, when the message was received for transmission, the defendant’s operator knew the relationship existing between the sender (plaintiff) and the deceased person referred to in the message was that of brotherhood ; and. we cannot doubt that the perusal of the message naturally suggested that the purpose was, not only that a grave might be opened and adequate preparations for the funeral, made, but that the friends and relatives of the sender might be notified to meet him at the train; and it is likewise not to be questioned that it was a natural presumption therefrom that plaintiff would suffer mental pain should he find, on his arrival at Clanton, that by reason of failure to deliver the message all these objects had miscarried. — Western, etc., Co. v. Long 148 Ala. 202, 41 South. 965; Western, etc., Co. v. Coffin, 88 Tex. 94, 30 S. W. 896; Western, etc., Co. v. Broesche, 72 Tex. 654, 10 S. W. 734, 13 Am. St. Rep. 843; Western, etc., Co. v. Carter, 85 Tex. 580, 22 S. W. 961, 34 Am. St. Rep. 826; Cashion v. Western, etc., Co., 123 N. C. 267, 31 S. E. 493. The injury in such a case may be said to be the natural result of a failure to deliver the message, and must have been in the contemplation of the parties when the contract for the transmission of the message was made. Then, if the facts showing liability are proved, we believe it is the settled law that the jury may infer the fact of mental suffering, because it is recognized as a common result under such circumstances, and the direct proof is not indispensible to show that mental suffering did ensue.- Western, etc., Co. v. Crocker, 135 Ala. 492, 33 South. 45, 59 L. R. A. 398; Western, etc., Co. v. Merrill, 144 Ala. 618, 39 South. 121, 113 Am. St. Rep. 66; Willis v. Western, etc., Co. 69 S. C. 531, 48 S. E. 538, 104 Am. St. Rep. 828, 2 Am. & Eng. Ann. Cas. 52, and notes and cases cited therein.

But we notice, in this evidence, the lack of a link which we deem indispensible to a case of liability against the defendant for damages for mental suffering. While the testimony shows that- Kanter and P. C. Dennis, the sendees of the message, resided within a fourth of a mile of defendant’s office in Clanton, and that their places of business were probably within 150 yards of defendant’s office, there seems to have been no effort to prove that they were -at home or at their places of business during Saturday, except that it is shown that plaintiff, after the train arrived, found Dennis at his place of business; nor is there any evidence to show that the sendees, if they had received the telegram promptly Saturday, would have made arrangements for the funeral, and have had the grave prepared, any earlier. These were facts involved in tlie issues, provable by the sendees, and we know of no rule of evidence which authorizes the presumption that the sendees were at home or at their places of business, or that they could or would have notified the relatives and friends of the plaintiff and of deceased of plaintiff’s expected arrival on the train, or that they could or would have made arrangements for the funeral and a grave, at an earlier hour. — Bright v. Western, etc., Co., 132 N. C. 326, 43 S. E. 841; Hancock v. Western, etc., Co., 137 N. C. 497, 49 S. E. 952, 69 L. R. A. 403.

On these considerations, charges 8, 9, 16, 17, and 18, assert correct principles and should have been given; while charge 14 is: subject to criticism if at all, merely for being more favorable to plaintiff than warranted under the facts.

For the same reasons, evidence that rain fell Sunday afternoon was improperly admitted.

Some portions of the oral charge of the court excepted to (in view of what has been said above) are'abstract.

A trial court is under no duty to give charges which instruct the jury that there is no evidence of a fact, and therefore no error is involved in the refusal of charges 10, 12, 13, and 15 in defendant’s series. — Mobile, etc., Co. v. Walsh, 146 Ala. 295, 40 South. 560.

Charge 11 was properly refused as plaintiff', under the facts, was entitled to nominal damages at least.

The amount paid by the plaintiff as toll for the transmission of the message is not special damages, necessary to be specifically claimed in the complaint as a condition of its recovery; but, if it is averred in the complaint, as having been paid this authorizes proof and recovery thereof under the general sum claimed as damages.— 5 Ency. Pl. & Pr. 748; Wilkerson v. Searcy, 76 Ala. 176; Dowdell v. King, 97 Ala. 635, 12 South. 405. it follows therefore, that the demurrers to counts 4, 6, and 7, insisted by appellant as being well taken were properly overruled; and for tbe same reasons tbe affirmative charges, requested by the appellant is respect to these counts, based upon the theory that the toll paid is not claimed as a part of the damages, were properly refused.

According to Phillips’ (the transmitting operator’s) own evidence, he said nothing to Howard (who delivered the message for the plaintiff) in regard to the message ■being subject to delay on account of the strike until after he had accepted same and transmited it to Anniston; and what he said did not amount to a contract limiting defendant’s, liability for failure to transmit, or for delay in transmitting, on account of a “strike,” or of any other cause. Then, too, the undisputed testimony sIioavs that Phillips accepted the toll from plaintiff, and informed him he had gotten the message off, without mentioning any limitatation on the liability of the company. Under these conditions, the fact that some of the company’s employes were on a strike was not available as á defense to the defendant, and the court committed no error in refusing to allow proof of that fact. — 27 Am. & Eng. Ency. 1026, 1050.

We have considered all the grounds of error Avhich have been pressed upon our attention; and for the errors pointed out the judgment of the city court must be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Anderson, JJ., concur.