Western Union Tel. Co. v. Wright , 169 Ala. 104 ( 1910 )

ANDERSON, J.

The first count of the complaint was in tort and claimed damages only for mental suffering. There was no claim for actual damages to the plaintiff’s estate — nothing upon which damages for mental suffering could be predicated. Therefore damages for mental anguish could not be recovered under said count, and, as it was only for mental anguish, it did not state a cause of action. — Western Union v. Waters, 139 Ala. 652, 36 South. 773; Blount v. Western Union Tel. Co., 126 Ala. 105, 27 South. 779; Western Union Tel. Co. v. Rowell, 153 Ala. 295, 45 South. 73; Western Union Tel. Co. v. Krichbaum, 132 Ala. 535, 31 South. 607.

It is true the complaint was amended, setting up “for and in consideration of the sum of, to wit, 25 cents, which was paid to defendant’s agent at, to wit, Myrtle-wood.” This does not claim the toll, however, as damages, but merely recites the payment of same. Moreover, there is no place for the insertion of the amendment in count 1 after words set out, as said words do not appear in count 1.

It seems that the plaintiff’s wife sent several telegrams on July 16th, two to plaintiff and one to his brother, Chas. Wright, direct, and which said three were sent to the office at Myrtlewood. ' She also sent another, later in the day, to the plaintiff by way of Thomasville and in the care of his brother, Chas. Wright, The proof also shows that the two sent to the Myrtlewood office, and as received by the defendant, to the plaintiff, were, one care of Chas. Wright in care of Buckeye Cotton O'il Co., and the other in care of one Tice. The Thomasville message was the only one sent to the plaintiff in care of Chas. Wright only and alone, and, as the suit is for a Myrtlewood message, we must discard the Thomasville one. It was stated upon the trial by plaintiff’s counsel that they relied upon the message sent the plaintiff in care of Chas. Wright, and which must have been the one sent from Myrtlewood in the care of Chas. Wright in care of the Buckeye Company. As this said message was sent in care of the Buckeye Company, the failure to show any effort to get it to said company may have imputed negligence to the defendant, and it should have been permitted to show that said company was beyond the free delivery limits.

It was incumbent upon the defendant to use all reasonable means at hand to locate the plaintiff or his brother; but, not finding the name Chas. Wright in the telephone book, it was not a circumstance going to show negligence because other Wrights were in the hook with “C,” for the first initial, and the defendant’s agent failed to call each of them up and ascertain whether or not either of them was the Chas. Wright in question, especially in view of the fact that the name Chas. Wright with his place of residence was seen by the agent in the city directory. The trial court erred as to that part of the oral charge designated as exception 2, in so far as it authorized the jury to impute negligence for a failure of the defendant’s agent to call up the other Wright or any of them and ascertain if either of them was Chas. Wright, and the man in whose care the telegram was sent.

The trial court erred in so much of the oral charge as authorized, as a part of plaintiff’s damages, the mental suffering over not being able to get to and be with his child. This claim was eliminated from the / original complaint by an amendment, which grounded the menial anguish upon not being able to be with his wife for 24 hours after the death of their baby. Moreover, the undisputed evidence shows that, had the telegram been delivered immediately after it was sent, he could not have reached the baby before its death. The child died at 8 o’clock p. m. of the day the message was sent, a considerable distance from Birmingham at Nanafalia, which is 12 miles from a railroad, and the first train that he could get going in that direction left about 12 o’clock that night.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Simpson, Mayfield, and Sayre, JJ., concur.