156 Ala. 334 | Ala. | 1908
Lead Opinion
It is needless for us to decide whether or not the defendant’s failure to properly transmit and deliver the message lodged with its agent at 4:38 p. m., would entitle the plaintiff to recover for mental anguish, if any had resulted from said failure to transmit and deliver, as the proof fails to show that the plaintiff sustained any mental anguish as the proximate result of the defendant’s negligence. The plaintiff was fully apprised of his son’s condition, was on his way to his bedside, had telegraphed that he would be there on “No 1,” and there is no proof that an answer to his message, favorable or unfavorable, would have changed his plains. Bobbins, the clerk, was keeping him posted as to his son’s condition, and would have doubtless wired him if his child continued to grow worse,
The judgment of the city court is reversed, and the cause is remanded.
Reversed and remanded.
Dissenting Opinion
(dissenting). The action seems to be for the breach of the contract, and the testimony shows, without dispute, that it was breached to the damage of the appellee, Leland. It appears, without conflict, from the proof: That Leland’s son was ill at Stafford Springs. That Leland, being at Tuscaloosa, arranged with Robbins to keep him advised of the condition
My Brothers hold that, in the absence of affirmative proof of mental anguish suffered by Leland, the father, in consequence of the failure to promptly transmit the last message, even though Leland had arranged with Robbins to keep him informed of his son’s condition, there could be no recovery for mental anguish, and only for nominal damages, together with the price of the message and interest thereon. I am of the opinion that the court below properly refused charge 1, Avhich stated the law of the case to be as is now ruled by this court. “In trials of fact it Avill be generally found that the factum probandum is either directly attested by those who speak from their actual and personal knowledge of its existence, or it is to be inferred from other facts satisfactorily proved.” 1 Greenleaf on Ev. § 13. Within the latter provision of the rule quoted and from the undisputed testimony presented, the jury Avere authorized to infer mental suffering by Leland in consequence of a
The company kneAV of the illness, that an operation was proboble, that the father would arrive at the son’s bedside the next morning, and that he desired to knoAV the condition of the son at seven that night. From all this it seems to me no man could doubt that a father of a desperately sick child Avould naturally mentally suffer from the very fact that he could not hear of his child’s condition.. If so, what an injustice it is to> shield the derelict party, whose wrong has inflicted upon the father the consequences of a most natural anxiety to know the condition of his child, by the response that, “had my