132 Ala. 535 | Ala. | 1902
— Action for damages against Telegraph Company for failure to deliver message.
The complaint contained two counts, but one of them was withdrawn. The count upon which the cause was tried, was demurred to on the ground that damages for' mental suffering and anguish were not recoverable, there being no other damages claimed. Whether the demurrer was well taken or not depends upon whether-the count is in form ex contractu or ex delicto. If in. assumpsit, based necessarily upon a breach of the contract, a breach it may be is sufficiently shown by the facts stated to warrant a recovery for nominal damages, if proven to support a recovery for mental suffering by way of aggravation.—Western Union Tel. Co. v. Wilson, 93 Ala. 32, and authorities cited. On the other hand, if the count is in form ex delicto and case, no damage being averred or claimed for any actual injury to the person, reputation or estate of the plaintiff, and only damages for mental suffering, it was subject to the demurrer.—Blount v. Western Union Tel. Co., 126 Ala. 105.
The plaintiff had the right to frame the count either in assumpsit or case. He cpuld have maintained the former by relying upon a breach of the contractual obligation to deliyer the message for a recovery; or the latter by relying upon a breach of duty in failing to deliver it, whether that duty arose out of the contract or
Independent of a promise by* defendant to deliver the message when it accepted it for transmission, the law imposed the dnty upon it of transmitting and delivering it with all reasonable diligence.— 25 Am. & Eng. Enc. Law, (1st ed.), 778-780.
When the dnty springs ont of the relation of the parties growing out of a contract, of necessity the contract and the terms of it mnst be averred in the complaint in order to shoiv the dnty. And if arecovery is sought for a breach of dnty growing ont of a breach of a contract, a breach of the contract mnst also be shown by the aver-ments.
Applying the foregoing principles to the count under consideration, it is clear that a breach of dnty in failing to deliver the message is the gravamen of the complaint and not the breach of a promise by defendant to deliver. We have been unable to find any case not in harmony with these views, except that of L. & N. R. R. Co. v. Brinkerhoff & Co., 119 Ala. 528. It is clear that the court overlooked the distinction pointed ont above and went on the theory that because the contract and its breach was alleged, that the action was assumpsit, notwithstanding the gravamen of the complaint was the breach of duty. That case is wrong and mnst be overruled.
The demurrer should have been sustained. It is unnecessary to consider any of the other assignments of error.
Reversed and remanded.
