138 Ala. 632 | Ala. | 1903
The complaint in this cause as originally filed consisted of two .counts, each declaring for a breach of a contract between the plaintiff and defendant for the transmission by the latter from Birmingham, Ala., to the addressee at Georgetown, Ky., of a telegraphic message in the following words: “Birmingham, Ala., 7-23-99. To Rev. W. B. Crumpton, Georgetown, Ky. Am on Queen & Crescent train. Wire me Mama’s condition. [Signed.] Wm. O. Crumpton.” Simultaneously with the commencement of the suit, plaintiff filed another complaint against the defendant, declaring for the breach of a contract- for the transmission by defendant of a telegraphic message from Montgomery, Ala., to the addressee at Georgetown, Ky., which message was as follows: “Montgomery, Ala., 7-22-99. To Rev. W. B. Crumpton, Georgetown, Ky. Am leaving for Georgetown to-night. [Signed.] Wm. C. Crumpton.” In each of the suits the alleged injury for which special damages were claimed were the same, viz., mental distress of plaintiff from his being denied opportunity of seeing the dead body, of his mother and of being present at her funeral. Defendant attempted to remove both cases to the Federal Court, but they were remanded to the State Court and the defendant pleaded in abatement of this suit, the commencement and pendency of the other suit. This plea was on plaintiff’s motion stricken out as coming too late. The striking out of this plea is here assigned as error, but no exception thereto is shown to have been taken and, therefore, that action cannot be reviewed. . '
The propriety of allowing the amendment to. the complaint is not properly brought in question by the demurrer to the complaint as amended. The way appropriate to raise such a question Avould have been by objection and exception to the allOAvance of the amendment or by motion to strike. — Sheffield, etc. v. DeJarnette, 111 Ala. 248; Nashville, Chattanooga & St. L. Ry. v. Parker, 123 Ala. 683. No misjoinder results from the introduction by counts 3 mid 4 of a cause of action different from that contained in the original complaint. Code, § 3232. Viewing each count as a Avhole, the averments of negligence are seen to be merely descriptiA'e of the mode in Avliich the contract Avas broken. They do not have effect to join a case in tort Avith a case c.r contráctil.. — Manker v. Western Union Tel. Co. 137 Ala. 292; 34 So. Rep. 839.
The evidence was Avithout conflict and established the following facts: .'Between 8:30 mid 9:30 in the evening of July 22, 1899, plaintiff, Avho Avas then in Montgomery, went to defendant’s office at that place and handed to its agent the message of that date above
The transaction between the plaintiff and defendant’s agent at Montgomery as detailed in the foregoing statement involved an agreement,, implied if not express, for the prompt transmission of the first message, and the same is true of the transaction between the plaintiff and defendant’s agent- at Birmingham with regard to sending the second message. The evidence shows that such transmission could have been accomplished within the space of one hour, and it follows as a conclusion of law that the transmissions which occurred at 10:02 and 10 :03 on the morning of July 23rd were not a compliance with either of those agreements. Nothing appearing to the contrary, it is presumed that defendant’s agents who were intrusted with the receipt of messages, had authority to bind it by their agreements as to the time for sending them even to the extent of disregarding the regulations as to the hours of opening and closing the office at Georgetown. — Jovce on Electricity, § 812; Peck v. Wes. U. T. Co., (Iowa) 43 L. R. A. 214; Wes. U. T. Co. v. Bruner, (Texas) 19 S. W. Rep. 149.
For the breach of each of the agreements referred to, plaintiff was entitled to. recover such damages as resulted therefrom directly, naturally and proximatelv, and the price paid by plaintiff as the consideration, for the g¿>-reements were of that class. Decisions of this court have established here the doctrine that special damages for mental anguish may be added to other damages made recoverable by the breach of contract to deliver a telegram relating to the sickness or death of one who bears such near relationship to the sender as that of a parent. — Western Union Tel. Co. v. Ayres, 131 Ala. 391; Western Union Tel. Co. v. Crocker, 135 Ala. 492; Western Union Tel. Co. v. Henderson, 89 Ala. 510;
Under the evidence it was for the jury to determine whether the loss of opportunity and mental distress alleged to have been suffered by plaintiff, was the proximate result of the failure to make due delivery of either of the messages. The charge on which assignments of error are based are each inconsistent with views expressed above and were properly refused.
The refusal of the motion for a new trial does not appear to have been excepted to, and, therefore, is not reviewable.
Judgment affirmed.