Western Union Telegraph Co. v. Smith , 189 Ala. 534 ( 1914 )

MAYFIELD, J.

The action is to recover damages for delay in the transmission and delivery'of a telegram. The telegram was sent from Pell City, Ala., to Bessemer, Ala. The message was as follows:

“249 AN. M. 7.

“Pell City, Ala., June 29, 1911. “W. D. Smith, 826 Avenue D, Bessemer, Ala.

“Baby is very sick; come at once.

“Belle Smith.

“A 3:05 p. m.

“12 MR — DA—MC—3:11 p. m.”

The evidence showed that the message was delivered to the telegraph company at Pell City, between 1 and 2 o’clock p.. m., on the above date, but that it was not delivered to the sendee until the forenoon of the next day. The message was received at Bessemer at 3:12 p. m. of the day it was sent, and it appears that efforts were made to deliver the same, by both the operator, who was a lady, and the messenger boy, who was 14 or 15 years of age, but without success. The testimony shows that they were unable to locate Avenue D, or the sendee, and that thereafter a postal card was written, addressed as ivas the message, notifying the sendee of the telegram, and mailed at Bessemer, and that this card was delivered on the morning of the next day by the mail carrier.

While the evidence of the operator and of 'the messenger boy, if true, shows that they used proper diligence in attempting to locate the sendee and the place to which the message was addressed, yet the fact that the postal card was promptly delivered in the due course of mail, though it was addressed just as the message was, made it a question for the jury on the issue as to whether there was any actionable negligence as to the delay in the delivery. It was likewise a question for the jury whether the plaintiff could and would have reached his child before its death, even if the message had been transmitted and delivered promptly.

The facts of this case clearly distinguish it from that of Western Union Telegraph Co. v. McMorris, 158 Ala. 563, 48 South. 349, 132 Am. St. Rep. 46, and other similar cases cited. Here it was shown that the sendee was within three doors of the place of the address, and that he had made arrangements for having letters or messages of importance forwarded to him, and that, if the message had been promptly sent to the place of its address as the card was, it would have been delivered as the card was. The plaintiff testified that: “I had the money and means at hand, if the message had been delivered to me on the afternoon of January 29th, to pay my fare, and would have gone to the bedside of my sick child.”

There was no such evidence as this in the MoMorris Case, supra, nor in Crowley’s Case, 168 Ala. 583, 48 South. 381, nor in the other cases cited. This question was clearly one for the jury, and there was no error in refusing .the affirmative charge for defendant, nor those which requested instructions that there could be no recovery of damages as for mental pain and anguish.

Charge 14 possessed misleading tendencies, and was properly refused. Charges 23 and 24, however, were correct charges, as applied to the evidence in this case. The defendant’s evidence tended to prove the facts hypothesized in the charges, and it had a right to have the law charged on its theory of the evidence; and if this evidence was true, then plaintiff was not entitled to recover. We do not think that these charges were sufficiently covered. Charge 26 asserted a correct proposition of law, and should have been given. ■

We find no error in the rulings on the evidence.

Reversed and remanded.

Anderson, C. J., and McClellan and Gardner, JJ., concur.