Barbour v. Western Union Telegraph Co. , 210 Ala. 135 ( 1923 )

The insistence is that under counts 3 and 4 of the complaint a tort committed in Alabama is charged.

The former appeal is reported in 206 Ala. 129, 89 So. 299, 17 A.L.R. 103. If the suit message, for all purposes, was impressed with interstate character, the plaintiff can no more recover damages for mental anguish because of the alleged breach of duty to notify the sender of nondelivery, than for the breach of the initial duty to transmit and deliver (Western Union Tel. Co. v. Beasley, 205 Ala. 115, 87 So. 858; Western Union Tel. Co. v. Speight, 254 U.S. 17, 41 Sup. Ct. 11,65 L. Ed. 104); that is to say, it is immaterial in what form of action the plaintiff claims his damages for mental anguish — whether for failure to perform the initial duty to transmit or deliver, or negligence in failing to notify the sender of defendant's inability to deliver, after having undertaken the interstate transmission and delivery of the message.

The rule of law which necessitated the reversal of the judgment recovered by the plaintiff in the first instance (Western Union Tel. Co. v. Barbour, 206 Ala. 129, 89 So. 299, 17 A.L.R. 103), now necessitates the affirmance as to charges given and assigned for error, viz. charges 4, 6, 7, and 9.

The plaintiff, as a witness, having answered in the affirmative that if he had received any notice before the funeral that this telegram had not been delivered to Mrs. Morgan he bad "other means by which" he could have communicated with her or gotten her to the funeral, no error was committed in refusing to allow the witness to further state there was telephonic communication between Tuscaloosa and Wylam. So of the questions, "Mr. Barbour, you said something about a taxicab, state whether or not you could have gone after your daughter and brought her here for the funeral?" and "Would you have done so?" refused to plaintiff. The questions sought to call for an expression of the undisclosed intention of the witness, as to whether or not he would have "gone after" his daughter if notified, and were properly refused.

Plaintiff's motion for a new trial was properly overruled.

The judgment of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.