Western Union Telegraph Co. v. Fuel

• Decision Date: 10 February 1910
• Citation: 51 So. 571,165 Ala. 391
• Parties: WESTERN UNION TELEGRAPH CO. v. FUEL.
• Court: Alabama Supreme Court

51 So. 571

165 Ala. 391

WESTERN UNION TELEGRAPH CO. v. FUEL.

Supreme Court of Alabama

February 10, 1910

Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.

Action by J. E. Fuel against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The facts and pleadings sufficiently appear from the opinion. The court, at the request of the defendant, gave the following charge: "(6) Gentlemen of the jury, I charge you that plaintiff is not entitled to recover any damages in this case for mental worry or mental suffering, during his trip from Barton to Tullahoma, on account of the fact that he did not get to look on the face of his dead wife, or to make preparations for her burial." The court gave this charge, with the following oral explanation: "Gentlemen of the jury, I charge you, if you find for the plaintiff, he is entitled to recover for his mental suffering, if you find that he did so suffer, on account of the fact that he did not get to look on the face of his dead wife, or to make preparations for her burial after his arrival at Tullahoma." The following charge was refused to the defendant: "(11) If the jury believe from the evidence that the wires of the defendant were interfered with by parties between Memphis and Barton, on the morning of October 26, 1907, so that the message sued on could not be transmitted from Memphis to Barton, and that the parties so interfering with the wires were not charged by the defendant with any duties in the transmission of said message, then I charge you that the defendant is not responsible for the action of said person interfering with the wires, even though such person so interfering with the wires were the agent of the defendant."

George P. Jones, for appellant.

Almon &amp Andrews, for appellee.

McCLELLAN J.

The action is by the sender, acting through an agent, for the breach of a contract to transmit and deliver, with due diligence and care, a telegram announcing the death of plaintiff's (appellee's) wife. The complaint, in two counts, alleges the substance of the contract and its breach. The demurrers, objecting that averment of negligence, or willful or wanton disregard of plaintiff's rights in the premises, was omitted, were not well taken. The proper averment of the contractual status created by the parties and its breach, in this class of cases as in all others for a breach, meets all the requirements of good pleading. Had the action been ex delicto (Krichbaum's Case, 132 Ala. 535, 31 So. 607), the point suggested by the demurrers would have been well taken. The damages claimed are for mental anguish, viz., that suffered in consequence of not being able to see the face of his wife after death and before burial, and that inflicted on account of the deprivation of opportunity of making disposition of the remains of his wife as he desired, and of attending her burial, and of making the preparation therefor. Mental anguish was, if suffered, a proper element of recoverable damages in this case. Krichbaum's Case, 132 Ala. 535, 31 So. 607, Wilson's Case, 93 Ala. 32, 9 So. 414, 30 Am. St Rep. 23, and Manker's Case, 145 Ala. 418, 424, 41 So. 850, among others. The position of this court on the question of recoverability of damages, in telegraph cases, for mental anguish suffered, is too deeply grounded to now allow investigation with a view to change.

Aside from general traverse of the allegations of each count, it was undertaken to be specially pleaded by original pleas 2 and 3, by way of confession and avoidance, that the appliances for transmitting the message from Memphis, Tenn to Barton, Ala., that being the usual routing for messages from Tullahoma, Tenn., the initial office, were interfered with, and prompt transmission and delivery prevented, by unknown parties. Among other grounds, the demurrers to these pleas took the objections that the averments of interference were conclusions of the pleader, and did not show the facts constituting the interference. The court sustained the demurrers. The stated objection taken to both pleas was well taken, and the action of the court must be approved on that score, independent of any other grounds of the demurrers. The pleas did not show that the cause or causes of the "interference"--the acts working it--were unknown to the defendant, if, indeed, that could avail. It was averred that the persons causing the interference were unknown; but this did not negative the other fact. Furthermore, the pleas did...