Western Union Telegraph Co. v. Long , 148 Ala. 202 ( 1906 )

ANDERSON, J.

— This was an action brought by the plaintiff Long, for a failure by the defendant to deliver a telegram sent by him as follows, to-wit: “Mr. Pleas Keener, Collinsville, Ala.: My baby is dead, phone Mr. Green, also H. M. Long at Dr. Shermans at Lathamville. I will be at your place tonight,'meet us with conveyance. J. W. Long.” The case was tried on the sixth, seventh, and eighth counts, resulting in a verdict and judgment for the plaintiff, and from which the defendant prosecutes this appeal.

This court seems to be committed to the doctrine that the sender of a telegram can recover damages for mental anguish suffered, as the proximate consequence of a failure to deliver the message.—Western Union Tel. Co. v. Henderson, 89 Ala. 510, 7 South. 419, 18 Am. St. Rep. 148; Western Union Tel. Co. v. Ayers, 131 Ala. 391, 31 South. 78, 90 Am. St. Rep. 92; Western Union Tel. Co. v. Haley, 143 Ala. 586, 39 South. 386. We think a perusal of the message in the case, at bar, would likely suggest the importance of a delivery, and that mental anguish and suffering would naturally ensue from a nondelivery. In the Ayers Case, supra, the court held that the plaintiff was not entitled to recover damages for mental suffering because the sendee was not of the degree of kinship, whose absence deprived the plaintiff of consolation in his hour of grief. There the only mental anguish claimed to have been suffered was the absence of the brother-in-law, thus depriving the plaintiff of his presence and consolation. The message in the ease at bar was sent to an uncle by marriage and who does not come within the degree of kinship whose absence furnished a right to recover for mental anguish. But as we understand the complaint and the proof, the plaintiff grounds his right to recover for mental suffering, not alone upon the fact that the sendee and others were not at tine train to extend their condolence, but to aid and assist him with the corpse of his child, and in-making the funeral arrangements, etc. Instead of being met’ at the train with a conveyance and by friends .and relatives, and of having his people informed, when he expected to bury his child, he alighted from the train a dreary, cloudy night, with no one to meet him or assist him, and to hear that no one had been apprised of his child’s death, and that no arrangements had been made for the funeral the next day. Can it be thought,for a moment that this man did not suffer from mental anguish not measurable by dollars and cents, and that said anguish and suffering were not the proximate consequence of a nondelivery of his telegram, and that the very telegram itself was not sufficient, to suggest to the defendant the result of a nondelivery? We think not. We do not mean to hold that in all cases and under all conditions the sender can recover for mental suffering, growing out of a failure to.meet him at the train, etc. But the telegram in this case contemplated more than the bare presence of the sendee. It called for the arrangements of preliminaries, of a most sacred character.

In the case of Western Union Tel. Co. v. Carter, (Tex. Civ. App.) 21 S. W. 688, where a father,.telegraphed to a friend of the death of his son, and requested him to send a coffin which was not delivered, and the funeral was delayed until the body begun to decompose, the court said: “The doctrine that damages of this character may be considered the natural and direct consequence of a failure to transmit a telegraphic message, such as the one in question, has become so firmly fixed in our jurisprudence, that the. action of appellant seems scarcely to be justified in asking us to renounce it.” See, also, Western Union Tel. Co. v. Broesche, (Tex. Sup.) 10 S. W. 734, 13 Am. St. Rep. 843. We think the case of Western Union Tel. Co. v. Henly, (Ind. App.) 54 N. .E. 775, relied upon by the appellant’s counsel is unlike the case at har. The telegram in that case did not even request that the sender he met. It could have been taken simply as a notice of her expected arrival ,and reads: “Arrive Baltimore & Potomac, Monday, 1:30, p. m.”' There was nothing in this message to indicate that the sender would suffer mental anguish as the result of the nondelivery of the message. She was to arrive in broad daylight, and, as was said by the court: “On its faqe the message did not disclose the purpose of the journey, or indicate the age or condition of the sender or1 sendee, or the condition between them or whether the sender was travelling alone, or with an escort, or others under her care. It did not purport to be a request for any person to meet her or provide a conveyance for her. It did not show that it was sent in response to any message, or suggest the illness of any person or a desire that the coming of the sendor should be communicated to anybody but sendee. Under well-settled principles, there was not, we think, such a consequence of the breach .of the contract that the injury to the appellee could be the measure of damages, for the reason that such damages cannot reasonably and fairly be considered as arising naturally from a breach of the contract itself, or as having been in the contemplation of both parties, when they made the contract, as the probable result of a breach of it.” ■ In the case at bar the telegram was received by the ágent at Collinsville] it imparted to the company, through him,, the sadness and sacredness of plaintiff’s mission. The agent knew the train would arrive in the night. The sendee was but a short distance from the office, and would have had ample timé to comply with plaintiff’s request had he gotten the message. And the defendant must have known that the nondelivery of,the message would result in disappointment and mental anguish to the plaintiff. What we have heretofore said disposes of assignments of error numbered 1, 2, 3, 4, 5, 11, 12, 13, 14, Í5,17, and 18.

There was no error in sustaining the objection to the question to John Keener: Why did you not give the telegram to your brother?” Of course, the defendant had the right to show efforts to promptly deliver the message, but the question does- not seek to bring out what was done but seeks the'uncommunicated reason or motive of the witness. There was no error in refusing charge 10 requested by the defendant. The plaintiff was not only deprived of the presence of. Pleas Keener, upon his arrival and his consolation as a relative, but he was deprived of his assistance which would have been of some consolation to him at the time. The facts in the Ayers Qase, supra, are unlike the ones in .the cáse; at bar. There the plaintiff was deprived only of such consolation as could be inferred- from the absence of his brother-inrlaw, and from whom he. expected nothing'except the benefit of his presence. . Here, the plaintiff, not only had the right to,expect the presence of Keener for the purpose of sharing his grief, but that the assistance -to be rendered to him upon the arrival of the train would afford consolation-to him under the circumstances-. The message clearly indicates that plaintiff was taking his child to Collinsville- for burial, and that the failure to deliver it would naturally result in delay, and there was evidence of a delay in the burial ,and the jury could have inferred that the delay was the proximate result of the failure to deliver the telegram. Charges 13 and 14 requested by defendant were properly refused. We do not consider the damage assessed by the jury excessive, and there was no error in overruling the motion for a new trial.1

The judgment of the circuit court is affirmed. •

Haralson, Dowdell, and Denson, JJ., concur.