Western Union Telegraph Co. v. Fuel , 165 Ala. 391 ( 1910 )

McOLELLAN, J.

— The action is by the sender, acting through an agent, for the breach of a contract to transmit and deliver, with due diligence and care, a telegram announcing the death of plaintiff’s (appellee’s) wifé. The complaint, in two counts, alleges the substance of the contract and its breach. The demurrers, objecting that averment of negligence, or willful or wanton disregard of plaintiff’s rights in the premises, was omitted, were not well taken. The proper averment of the contractual status created by the parties and its breach, in this class of cases as in all others for a breach, meets all the requirements of good pleading. Had the action been ex delicto (Krichbaum’s Case, 132 Ala. 535, 31 South. 607), the point suggested by the demurrers would have been well taken. The damages claimed are for mental anguish, viz., that suffered in consequence of not being able to see the face of his wife, after death and before burial, and that inflicted on account of the deprivation of opportunity of making disposition of the remains of his wife as he desired, and of attending her burial, and of making the preparation therefor. Mental anguish was, if suffered, a proper element of recoverable damages in this case. — Krichbaum’s Case, 132 Ala. 535, 31 South. 607; Wilsons Case, 93 Ala. 32, 9 South. 414, 30 Am. St. Rep. 23, and Manker’s Case, 145 Ala. 418, 424, 41 South. 850, among others. The position of this court on the question of recoverability of damages, in telegraph cases, for mental anguish suffered, is too deeply grounded to now allow investigation with a view to change.

Aside from general traverse of the allegations of each count, it was undertaken to be specially pleaded by original pleas 2 and 3, by way of confession and avoidance, that the appliances for transmitting the message from Memphis, Tenn., to Barton, Ala., that being the usual routing for messages from Tullahoma, Term., the initial office, were interfered with, and prompt transmission and delivery prevented by unknown parties. Among other grounds, the demurrers to these pleas took the objections that the averments of interference were conclusions of the pleader, and did not show the facts constituting the interference. The court sustained the demurrers. The stated objection, taken to both pleas was well taken, and the action of the court must be approved on that score, independent of any other grounds of the demurrers. The pleas did not show that the cause or causes of the “interference” — the acts working it — were unknown to the defendant, if, indeed, that could avail. It was averred that the persons causing the interference were unknown; but this did not negative the other fact. Furthermore, the pleas did not negative, as they should, the fact that there was no other means, within duty, whereby the message might, with promptness, have been transmitted to Barton, Ala. Plea 3 as amended was identical with original plea 3, except it was averred that the agent at Tullahoma did not know of the “interference” at the time the message was filed with him for transmission and delivery. The amendment wrought no change in the plea from that present in the original. The general obligation and duty of such companies is set down in W. U. T. Co. v. Emerson, 161 Ala. 221, 19 South. 820, as taken from Joyce’s excellent work on the law of Electricity.

The contract, in this instance, was for the transmission and delivery, with due diligence, of the message filed with the company, from Tullahoma, Tenn., to Barton, Ala. In Sou. Ex. Co. v. Gibbs, 155 Ala. 303, 46 South. 465, 18 L. R. A. (N. S.), 874, the subject-matter of the contract was goods to be transported from another, into this state It was there held that the place of performance was in Alabama, and that the law of the place of performance should govern as to the nature, obligation, and validity thereof. The principle must be the same here. The only practical difference is that in the one case goods were to be transported and delivered, and in the other intelligence. While, from necessity, the measure of care and diligence, and assurance is not the same, of course, yet the contracts were the same in respect of performance, viz., both found inception in another state, but neither could be performed elsewhere than in Alabama. Reference to 2 Joyce, § 908, and notes thereto, will show that there is a difference of opinion in other jurisdictions, on the question. However, this court’s attitude, as taken in the decision cited, is regarded as sound, and to renounce its application to this case would necessarily overturn the principle announced and applied in that case. — W. U. T. Co. v. Hill, 163 Ala. 18, 50 South. 248.

The charges wherein the defendant sought to have the jury instructed that plaintiff could not recover for mental pain or anguish suffered in consequence of the deprivations before stated as claimed in the complaint were properly refused. — Crumpton’s Case, 138 Ala. 632; 36 South. 517 ; Ayers’ Case, 131 Ala. 391; 31 South. 78, 90 Am. St. Rep. 92; 5 May. Dig. p. 902, subd. 25, noting other authorities The relationship of the plaintiff to the deceased was that of husband.

There was testimony tending to support the averments of the complaint, and, if credited by the jury, to have entitled the plaintiff to nominal damages. The affirmative charge was, on this score alone, well refused. Besides this, under our decisions,' it was also open to the jury, on the evidence, to award damages for mental anguish for the breach of the contract declared on.— Authorities supra.

.The explanation, it was not a qualification, of charge 6, given for defendant, was not improper. — Callaway v. Gay, 143 Ala. 524, 529, 39 South. 277, following Eiland’s Case, 52 Ala. 322. The explanation was, as appears, merely an effort to forestall the possibility that the jury might take the charge as forbidding a recovery Avithin the legal limits and as claimed in the complaint. Nothing Avas taken from the charge, as Avritten, by the language of the court.

Charge 11 Avas well refused, because it limited the interference hypothesized to “the morning of October 26, 1907,” whereas the interference might have ceased during the remainder of'that day, and, if so, the defendant could not justify delay subsequent to the removal of the interference.

The verdict was for $1,000. It is insisted that the amount is excessive. The court below held to the contrary. We are not convinced that the ruling was erroneous. In Seed’s Case, 115 Ala. 670, 22 South. 474, the compensation for mental anguish Avas held to be a matter Avithin the impartial determination of the jury, and the finding of $1,500 was sustained.

The assignments argued in argument do not rest on error below.

Affirmed. •

Doavdbll, C. J., and Anderson, Mayfield, Sayre, and Evans, JJ., concur.