Western Union Telegraph Co. v. Johnson

SIMPSON, J.

This action was brought by the. ap-

* pellee against the appellant for damages on account of delay in delivering a telegram. As originally filed, the complaint contained two counts, to which demurrers were sustained, and thereupon the plaintiff amended the first count, so as to claim 25 cents paid for the transmission of the telegram, but offered no. amendment to the second count; consequently the only count left before the court was the first count as amended. The demurrers were refiled to the complaint as amended; an amendment to the demurrer setting forth additional grounds having been filed by leave of the court. Said demurrers were overruled. Said count Avas subject to demurrer for not setting out the telegram sent, either in words or in substance; consequently the court erred in overruling the demurrer to said count.

From the bill of exceptions it appears that the plaintiff left Yolande on. Thursday morning, and went to Birmingham; that on Thursday evening he delivered to the office in Birmingham the following-message, to wit: “Mrs. Sallie Johnson, Yolande. Meet me in Birmingham in a. m. sure. (Signed) Robert Johnson.” The telegram was not delivered until about 6 o’clock on Saturday evening; the company claiming that it made inquiries for the residence of the sendee, but could not find her, while the evidence for the plaintiff tended to show that she might have been found by the exercise of proper diligence. The sendee went to Birmingham by the first train on Sunday morning, and returned to Yolande with her husband on Monday evening. The plaintiff testified that Avhen he sent the telegram to his wife he was sick; that he was pretty sick, and not able to work, but was able to walk around; that fio “just SAvelled up at that time,” or he “Avas swoll up.” The person at whose house the plaintiff stopped in Birmingham testified that: “He had been lying around. He got up and went doAvn to send the telegram.”

There are no facts testified to from which the jury could infer actionable mental anguish. It was not shown that the plaintiff was in such a state of sickness as to need the attention of his wife, and to apply the mental anguish doctrine to such cases would be straining it further than the ends of justice require. From whát has been said, it results that the court erred in refusing to give charges 1, 2, 3, and 8; but there was no error in refusing to give the general charge in favor of the defendant, as the jury had evidence before them from which they may have inferred a liability for the amount of money paid for tbe telegram. — Westmoreland Case, 150 Ala. 654, 43 South. 790.

The judgment is reversed, and the cause is remanded.

Dowdell, C. J., and Anderson and Mayfield, JJ., concur. Sayre, .and Evans, JJ., concur in conclusion.