Western Union Telegraph Co. v. Manker , 145 Ala. 418 ( 1906 )

HARALSON, J.

On a former appeal in this case, it was held that the averments in the complaint alleged a cause of action ex contractu,, and not ex delicto. The plaintiff on his trial again treated the complaint as one for breach of contract, and the defendant so treated, it by its plea of non assumpsit thereto, upon which issue was taken. The action will, therefore, be considered as an action ex contractu on appeal. — Manker v. W. U. T. Co., 137 Ala. 292, 34 South. 839.

It was also held on that appeal, overruling cases asserting a contrary doctrine, that a principal may maintain an action in his own name for breach of contract made by his agent, although his name was not disclosed in sending the message. That conclusion was arrived at, after mature consideration of the court in consultation. We are now asked to review the latter decision and restore the former ones, and this is the main question on this appeal. It is sufficient to say, that we have not been shown any reasons we can approve for adopting this course, and we decline to follow it, and reaffirm what was decided in that case.

It is also contended by defendant, that in actions of this character, damages for mental suffering cannot be recovered. This contention might prevail if the action were ex delicto. But we have seen that the action is one of assumpsit, based upon the breach of a contract to deliver a telegram, in which case, the breach of the contract being shown, damages for mental suffering may be recovered by way of aggravation, and this, when the facts show that no more than actual nominal damages may be recovered. — W. U. T. Co. v. Krichbaum, 132 Ala. 535, 31 South. 607 ; 5 Mayfield’s Dig. 262, § 2.

The plaintiff proposed to show by Blanche Bernard, and the court allowed her to testify, against the defendant’s objection, “that plaintiff often received telegrams and letters” at the house, and at the address of witness, who was the keeper of the house where plaintiff boarded. The purpose of the evidence was to show, that the company knew, or had information of the residence of the plaintiff, and might have delivered the message in a reasonable time, if it had made diligent effort to ascertain her whereabouts. This evidence, for that purpose, was proper to be submitted to the jury, as tending to show that fact.

The witness further testified that she ivas in the house •when the telegram ivas received by plaintiff, “and saw her crying.” The defendant moved to exclude the words, “and saw her crying,” on the ground that they were irrelevant and incompetent testimony. There was no error in overruling the objection. The evidence was competent as tending to show mental suffering, a question proper for the determination of the jury.

The witness, Lola Smith, shown to have known plaintiff, was asked whether plaintiff ever received any telegram from the defendant company, while she was at Miss Blanche Benard’s house, to which question objection was made, on the ground, in substance, that messages may be delivered by one messenger knowing where the party resides, when the defendant does not necssarily know the residence.” The evidence was properly allowed for the reason given for allowing a similar question propounded to Miss Bernard.

The plaintiff requested the court to give charges numbered from 1 to 5 inclusive. We have examined these charges and failed to discover any error in them.

The defendant requested charges from 1 to 12 inclusive. From what has been said above, and according to the decisions of this court, these charges were properly refused.

It may be proper to say of the eleventh charge, that it ignores any reference to the knowledge of defendant or its operator of the plaintiff’s whereabouts, which the evidence tends to establish, and the failure of defendant's agent to make known to the messenger where plaintiff might be found. Without this, the charge was defective and misleading.

No error appearing, let the judgment be affirmed.

Affirmed.

Weakley, C. J., and Dowdell and Denson, JJ., concur.