Western Union Tel. Co. v. Cleveland , 169 Ala. 131 ( 1910 )

SAYRE, J.

Appellee sued in contract for failure to deliver promptly a message informing him of the fatal illness of his mother. The sender of the message was plaintiff’s brother. The court is of opinion that the complaint, when considered in all such of its parts as affect the question of the sender’s agency for the sendee, sufficiently showed that relation to the making of the contract with the defendant for the transmission and delivery of the telegram.

Special damages were claimed and recovered for mental anguish arising out of plaintiff’s failure to see his mother during her last conscious hours, consequent upon the delay in delivering the message. The right to recover such damages in such cases has been settled in this court. — W. U. Tel. Co. v. Kirchbaum, 132 Ala. 535, 31 South. 607; W. U. Tel. Co. v. Rowell, 153 Ala. 295, 45 South. 73. Plaintiff was allowed, over the objection and exception of the defendant, to testify that he had suffered mental pain and anguish on account of not reaching his mother’s bedside during her conscious hours. The main controversy between the parties to this appeal turns about this point. The cases are cited, and we will consider them as briefly as may be. In W. U. Tel. Co. v. Heathcoat, 149 Ala. 623, 43 South. 117, the plaintiff was permitted to testify that she “suffered mental sorrow, distress and regret on account of not seeing my (her) brother before his death.” The objection taken in the trial court was that the witness-was undertaking to decide what it was for the jury to determine, and, further, that the testimony was immaterial, irrelevant, and incompetent. The court said on appeal: “It was competent for the plaintiff to testify that she had suffered mental pain and anguish. At least, the objections to the question calling for such evidence are not tenable” — citing Eckles v. Bates, 26 Ala. 655, and Birmingham Ry. Co. v. Hale, 90 Ala. 8, 8 South. 142, 24 Am. St. Rep. 748. In the first of the cases there cited it had been held that the declarations of a slave, incompetent to testify against a white person, relative to the symptoms and nature of the diseases under which he labored at the time, were admissible as original evidence as being of the res gestae of his sickness, as well as upon the necessity of the case; the soundness of the slave being the issue in controversy. In the second of those cases the plaintiff, to show the extent of her injury, was permitted to introduce the testimony of her physician that when he saw her after the injury she was complaining of pain. In W. U. Tel. Co. v. Northcutt, 158 Ala. 539, 48 South. 553, a case which went to the conference of the whole court, including three of the justices who had participated in the decision of Heathcoat’s Case, that case being cited and noticed by the court, though in another connection, the question here involved was ruled to the contrary on the authority of City National Bank v. Jeffries, 73 Ala. 183. In the recent case of Mattingly v. Houston, 167 Ala. 167, 52 South. 78, Bank v. Jeffries was followed. In W. U. Tel. Co. v. Benson, 159 Ala. 254, 48 South. 712, on the authority of Heathcoat*s Case, supra, and some cases decided by the Supreme Court of North Carolina, it was ruled that the plaintiff might testify that he would have been present at the funeral of his relative if he had received the telegram of notification. There are scores of cases in this state holding to the contrary of the Heathcoat and Benson Gases. We have consulted the following: Sledge v. Scott, 56 Ala. 207; Sternau v. Marx, 58 Ala. 608; Mobile Life Ins. Co. v. Walker, 58 Ala. 290; Herring v. Skaggs, 62 Ala. 202, 34 Am. Rep. 4; Wheless v. Rhodes, 70 Ala. 420; Burns v. Campbell, 71 Ala. 291; Baker v. Trotter, 73 Ala. 281; McCormick v. Joseph, 77 Ala. 236; Ala. Fertilizer Co. v. Reynolds, 79 Ala. 497; Ball v. Farley, 81 Ala. 288, 1 South. 253; Burks v. Bragg, 89 Ala. 204, 7 South. 156; E. T. V. & G. R. R. Co. v. Davis, 91 Ala, 621, 8 South. 349; Fitzpatrick v. Brigman, 130 Ala. 450, 30 South. 500; Burke v. State, 71 Ala. 382; Wilson v. State, 73 Ala. 527; Johnson v. State, 102 Ala. 1, 16 South. 99; Dent v. State, 105 Ala. 14, 17 South. 94; Holmes v. State, 136 Ala. 80, 34 South. 180. Consistently, it was said, with the rule of the foregoing cases, it was held in Linnehan v. State, 120 Ala. 293, 25 South. 6, that a party might, upon cross-examination, be required to testify as to his motives, intentions, or mental state, where those facts are relevant to issues involved. That rule was also stated in the early case of Peake v. Stout, 8 Ala. 647. It may be that, in principle, both these rules are illogical survivals of the common-law rule of disqualification for interest, and certainly they are not within any exception of the statute abrogating the common-law rule on the subject. It is conceded, also, that the great weight of authority in other states is to the contrary. But not every syllogism serves the ends of justice, though the law is a reasonable science. Our own rule has been approved by a long line of judges as being the better adapted to the ascertainment of the truth of human transactions. No failures of justice have been observed to result from it, and this court as at present constituted, upon consultation and consideration of the Heathcoat and Berts on Gases, along with the rest, is disposed to adhere to the rule which has obtained in this state from the beginning. We have considered together the questions raised by the conflict between the Heath-coat and Benson Gases, on one hand, and those numerous cases referred to, on the other. They are one question. In Bank v. Jeffries the rule for exclusion of statements of mental conditions was taken as beyond dispute as the citation of authority shows. The peculiar feature of that case is to be found in its answer to the proposition that, since plaintiff suffered to an extraordinary degree, he ought to have been permitted to state the peculiar phases of his suffering, as that he was almost crazy. This was denied because for wrongs identical in nature and degree the man of delicate organism and acute sensibilities is entitled to no greater damages than one of a more stoical nature. We think juries may be relied on to draw proper inferences from facts and circumstances capable of proof under the rule which has long prevailed in this state. They may and do infer mental suffering because it is recognized as a common result of those circumstances which establish a legal liability for damages to estate in cases of this character. — W. U. Tel. Co. v. McMorris, 158 Ala. 563, 48 South. 349. And, as a practical proposition, it is better so than that the plaintiff be allowed to embellish his story by recounting every operation of memory or imagination which may have added poignancy to his grief. The court below was induced, no doubt, to its ruling by the decision in the Heathcoat Gase. It erred nevertheless. However, the plaintiff did no more than make the bare statement that he suffered pain and anguish, a fact which the jury would have inferred from other facts in evidence, if believed to exist, without the aid of his statement. — W. U. Tel. Co. v. Ayers, 131 Ala. 391, 31 South. 78, 90 Am. St. Rep. 92; Joyce on Elec. §§ 818-820; W. U. Tel. Co. v. McMorris, supra. He testified to nothing calculated to move the jury to an assessment of damages by a measure peculiar to his case. The writer is strongly inclined to hold that no injury resulted to the defendant from the ruling in question, and that the judgment ought to he affirmed. However, Dowdell, C. J., Simpson, Anderson, and Evans, JJ., hold that the error was prejudicial, the judgment will be reversed and the cause remanded. McClellan and Mayfield, JJ., hold that there was no error. They dissent.

Plaintiff’s brother testified that he delivered the telegram to the defendant’s agent at Altoona about noon on Sunday, the 29th of December, and that about half an hour later he asked the agent if he had got the message through, and the agent said he had. A motion to exclude on the ground that the agent’s declaration was of a past transaction and not made within the scope of his agency was overruled. If this objection could have been effective in any event, it cannot avail for a reversal because the presumption must he, in that case, that the evidence would not have been permitted over a timely objection. If the evidence was delivered in a narrative form so that defendant had no opportunity to object in advance, this fact should have been shown in the bill of exceptions.

Cassie Gordon, the messenger to whom the telegram was intrusted for delivery after its arrival at. Anniston, testified with particularity to inquiries made at numerous places for the plaintiff in the effort to effect a delivery, testifying, among other things, that he went to every place where the general manager told him.to go. We find no reversible error in the refusal of the court to permit him to testify that the general manager had told him to inquire at a particular place. It was competent to show due diligence in the effort to deliver, but a mere direction to a messenger, unless followed by action in pursuance thereof, did not constitute diligence on the part of the messenger to whom the message Avas finally intrusted for delivery, and for whose default the defendant thereby became responsible.

In view of some conflict in the evidence as to the address of the telegram, the court below charged the jury at defendant’s request, that, whether the telegram read “J. B. Cleveland, with Forbes Piano Co.” or “J. B. Cleveland, care Forbes Piano Co.,” the defendant could properly deliver the telegram to the Forbes Piano Company, and was not responsible for any delay that may have occurred after such delivery to Forbes Piano Company. The evidence was without dispute that, whatever efforts may have been made to deliver to plaintiff in person, delivery was finally made to an employe of the Forbes Piano Company at its business house. In other requests for instructions the defendant put forward the propositions, separately and alternatively, that plaintiff could not recover whether the message was directed to “J. B. Cleveland, with Forbes Piano Co.,” or “J. B. Cleveland, care Forbes Pjano Co.” It was held in W. U. Tel. Co. v. Rowell, 153 Ala. 295, 45 South. 73, that, where a telegraphic message was addressed to plaintiff in the care of another, the latter was thereby constituted the agent of the former to receive the message, and that a delivery to the person in whose care the plaintiff was addressed was a delivery to the plaintiff. The law of that case is not drawn into question, nor is it doubted. The contention is for some distinction between the effect of the two addresses shown in this case by the divergent tendencies of the evidence, it being argued that where a' telegram is addressed to one “with” another, the additional words amount to nothing more than a description of the addressee affording a means whereby he may be located. But we have been unable to find any substantial difference between the two forms of address. In strict reason, and to the ordinary apprehension, they.amount to the same thing. These requests were properly refused.

Charge 4, refused to defendant, stated the proposition that if the message, received for transmission on Sunday, was directed to plaintiff in care of the Forbes Piano Company, a business concern which did not keep its office open on Sunday, its delivery, to the Piano Company on Monday morning at 8:30 o’clock would be a delivery within a reasonable time. There was evidence going to show a delivery to the Piano Company at the hour hypothesized. The charge has this fault: It precludes anything of the duty of the defendant to exercise due diligence to deliver to plaintiff in person when it became known that a delivery could not be made to the piano Company on Sunday. Its duty then was to look elsewhere.

The court refused to instruct the jury that if the defendant’s office hours on Sundays at Anniston, the terminal office for this message, were from 4 to 6 o’clock in the afternoon, and such hours were reasonable, no duty rested on defendant to undertake the transmission of the message until 4 o’clock p. m. of that day. The evidence was in conflict as to whether the agent at Altoona informed plaintiff that the Anniston office would not be open for the receipt of messages until 4 o’clock. It was necessary for the court to hear in mind that the jury might find this fact for the plaintiff. There is no evidence that plaintiff had information of defendant’s rule from other sources. On that aspect of the case thus presented — an aspect which the jury had a right to adopt as the true one — the receipt of the message for transmission and delivery out of office hours would constitute a waiver of the rule governing its hours for doing business at Anniston. — W. U. Tel. Co. v. Hill, 163 Ala. 181, 50 So. 248, 23 L. R. A. (N. S.) 648.

Appellant complains that charge 26, given at plaintiff’s request, assumed that plaintiff did sustain mental pain and suffering on account of delay in the delivery of the telegram. As we read the charge, it did not take this question away from the jury, and was not subject to the vice imputed to it.

We are ready to admit that damages were awarded to plaintiff in ample measure; but in cases calling for the assessment of damages of the sort here recoverable, much must be left to the jury. We cannot say that the assessment evidences improper motive, and the verdict will be allowed to stand.

Some other questions are raised, but they are rather cursorily treated in the briefs All have been considered without finding reversible error save on the single proposition heretofore noted.

The judgment is reversed. The cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson, Anderson, and Evans, JJ., concur. McClellan and Mayfield, JJ., dissent.