Western Union Telegraph Co. v. Crocker , 135 Ala. 492 ( 1902 )

DOWDELL, J.

This is an action by the appellee against the appellant to recover damages for the negligent failure to deliver a telegraphic message. Damages are claimed for mental suffering and anguish. This is the main and practically the only question in the case. And it is sought in various wa3rs to be raised — by motions to strike out of the complaint certain averments, by demurrer, by objections to the introduction of evidence, and by written charges requested to be given to the jury. Questions on motions to strike will be considered on appeal only when properly presented by bill of exceptions. That was not done here. The bill of exceptions fails to show any ruling on the motion and exception thereto. The question, hoAvever, as to whether damages for mental suffering can be recovered under the facts of this, case, has been otherwise fairly presented on exceptions reserved to the introduction of evidence, and 1)3' charges requested and refused.

The telegram, which it is alleged that the defendant negligently failed to deliver, was as follows: “To L. C. Mull in, Gate City, Ala.: Walter is worse, come on midnight train. W. S. 'Crocker.” Walter was the four 3-ear old son of the sender, W. ¡8. Crocker, and the grandson of -the sendee, L, C. Mullin, who was the mother-in-law of Crocker. The message was written and delivered to the defendant at 1 p. in., and paid for, in ample time for its transmission and delivery to the sendee, in order for her to take the train designated. The non-delivery of the telegram is not denied. In its transmission from the receiving* office to the delivery office of the defendant, the name of the sendee was changed. This was the negligence or fault of defendant’s agents or employes. The agent who received the message for transmission, knew the sender and the sendee, and knew the relationship that existed, between them, and knew that Walter, the person mentioned in the message, was the son of the plaintiff, and grandson of L. C. Mullin. In consequence of the failure to deliver the telegram Mrs. Mullin did not reach the home of the plaintiff until after the death of his son, and then, after having been sent for by the plaintiff.

In Western Union Tel. Co. v. Ayers, 131 Ala. 391; 31 So. Rep. 78, where the relationship between the sender and sendee was that of brother-in-law, and the relationship of the sendee to the infant child mentioned in the message, was that of uncle, we expressed an unwillingness to extend the doctrine of recoverable damages, for mental pain and suffering for the negligent failure to deliver a telegraphic message, to that relationship.. Here the relationship, between the sender and sendee, is hearer and stronger. It is the closest of all relationship by affinity, and from which, if love and affection do not naturally spring, it is on account of some exceptional reason or cause. A love; too, that is. strengthened in the birth of the grandchild. The tender and doting love of the grandmother for her grandchild, and the reciprocal confiding love of the little child, is a matter of common knowledge. The father in sending* the message knew of the affection existing between his child and the grandmother, and would have been an unnatural father, not to have been sustained and comforted by her presence, or pained and grieved by her absence, in the trying hour of the death of his son. We are of the opinion, that the relationship, between sender and sendee, and person named in the message, is such as to warrant the recovery of damages for mental suffering and anguish. The rulings of the trial court on the admission of evidence, and in the giving and refusal of written charges, being in harmony Avith this vieAV, were free from error.

The defendant on the cross-examination of Mrs. L. C. Mullin sought to shoAV by her, limy many children and grandchildren she had, and how widely scattered they were, AAdiich the court, on plaintiff’s objection, refused to permit. This evidence Avas Avholly immaterial and irreleAmnt, and the court committed no error in sustaining plaintiff’s objection to its introduction.

There was a motion for a new trial, Avhich was denied. The grounds of the motion, Avith the exception of the one as to the verdict being excessive, raised the same questions raised on the trial, and which we have already considered. As to the verdict being excessive, Ave see no reason for differing with the finding of the jury, and the trial court in sustaining the verdict.

We find no reversible error, and the judgment will be. affirmed.