Birmingham Transfer & Traffic Co. v. Still

• Decision Date: 04 February 1913
• Citation: 7 Ala.App. 556,61 So. 611
• Parties: BIRMINGHAM TRANSFER & TRAFFIC CO. v. STILL.
• Court: Alabama Court of Appeals

61 So. 611

7 Ala.App. 556

BIRMINGHAM TRANSFER & TRAFFIC CO. v. STILL.

Court of Appeals of Alabama

February 4, 1913

Rehearing Denied April 8, 1913

Appeal from City Court of Birmingham; Robert N. Bell, Judge.

Action by J.H. Still against the Birmingham Transfer & Traffic Company. Judgment for plaintiff; defendant appeals. Affirmed.

J.T. Stokeley, of Birmingham, for appellant.

Harsh Beddow & Fitts, of Birmingham, for appellee.

PELHAM, J.

This is an action brought by the appellee, as plaintiff, in the court below against the appellant for damages growing out of the alleged breach of a duty resting upon a contract entered into by appellant, who was engaged in the transfer business in the city of Birmingham, Ala., to carry the small coffined corpse of the appellee's minor child in a suitable and befitting manner from the Terminal passenger station in the city of Birmingham to the Louisville & Nashville Railroad passenger station in said city.

The appellee arrived at said Terminal station, accompanied by a friend, en route to Cullman, Ala., to which place he was carrying the corpse of his child for burial. It was necessary, in order to complete the journey after arriving in Birmingham, to have the corpse carried across the city to the said Louisville & Nashville Railroad station, a distance of six or seven blocks, and the appellee contracted with the appellant to perform this service, paying the price ($2.50) fixed by the appellant, and stated by its agent to be the customary charge for such a service.

The corpse was transferred from the one station to the other in the city by putting the coffin containing the corpse on an ordinary one-horse dray used by the appellant in connection with its regular business in hauling baggage, and carrying it with some seven or eight trunks that were also on the dray which was driven by and in the charge of a negro driver and a negro helper. The coffin weighed, with its contents, about 75 or 80 pounds; the corpse being that of a small girl about 2 1/2 years old. When the negroes in charge of the dray drove up to the Louisville & Nashville Railroad station, where the father and his friend were awaiting its arrival, the coffin was piled in with the trunks, some of the trunks being over the coffin, and the negro men in charge were sitting on the trunks.

In each count of the complaint the plaintiff seeks to recover a portion of the sum paid the defendant for carriage, and damages for mental pain and suffering, and also exemplary or punitive damages. The defendant moved to strike from each count of the complaint the claim for pecuniary loss, being the amount claimed as part of the consideration paid the defendant for the services to be performed that were not performed, or were improperly performed. The action of the court in denying these motions, even if they were properly grounded, would not authorize a reversal of the case. C of G.Ry. Co. v. McNab, 150 Ala. 332, 43 So. 222; Southern Ry. Co. v. Coleman, 153 Ala. 266, 44 So 837. The appellant, however, raised the same question by special charges directed at the plaintiff's right to recover such damages, and this method of raising the question properly presents it for consideration on review.

If the defendant charged the plaintiff an unreasonable amount for the service rendered, or rather did not render the kind of service contracted for, the plaintiff would have a cause of action to recover the amount exacted in excess of a proper and reasonable charge; and if the plaintiff suffered recoverable damages for a breach of duty growing out of the same contract, and as a proximate consequence, entitling him to recover for mental pain and suffering, there is no rule of law that would prevent him from recovering for all of the damages in one action. "One who is entitled to sue at all for the consequences of a wrongful act of another may recover all the damages proximately resulting from that act. Birmingham Southern Ry. Co. v. Lintner, 141 Ala. 420 [38 So. 363, 109 Am.St.Rep. 40, 3 Ann.Cas. 461.]" B.R., L. & P. Co. v. Norris, 2 Ala.App. 610, 618, 56 So. 739. The same principle has often been applied to suits against telegraph companies for damages resulting from a failure to deliver telegrams. W.U. Telegraph Co. v. Krichbaum, 145 Ala. 409, 41 So. 16; W.U. Telegraph Co. v. Merrill, 144 Ala. 618, 39 So. 121, 113 Am.St.Rep. 66; W.U. Telegraph Co. v. Long, 148 Ala. 202, 41 So. 965; W.U. Telegraph Co. v. Westmoreland, 150 Ala. 654, 43 So. 790; Postal Telegraph & Cable Co. v. Beal, 159 Ala. 249, 48 So. 676.

The appellant, by appropriate methods, challenged the plaintiff's right to recover damages for mental pain and suffering, and makes the adverse rulings of the trial court against the appellant on this proposition the basis of several assignments of error. The cases cited by appellant in which our Supreme Court has held that a plaintiff could not recover for mental pain and suffering alone, without having a right to recover some actual or substantial damages aside from such injuries, are not in the way of plaintiff's right to recover for mental suffering in this case; for the contract, on its face, carried with it the necessary implication that the defendant, for the consideration paid, would carry the corpse in suitable and befitting manner, and its wrongful act in failing in this and hauling it on a dray in the same manner as ordinary baggage furnished the plaintiff with a cause of action for actual damages, aside from damages for mental suffering, for at least a part of the sum exacted for a different service.

The further insistence is made that damages for mental pain and suffering are not recoverable in a case of this nature, and that the improper and wrongful treatment of a dead body, when there is no mutilation or physical injury to the corpse, cannot be made the subject-matter or basis of a recovery of damages for mental pain and suffering by the next of kin, although it is conceded that the next of kin have the right to the custody of the body for the purposes of burial. We cannot subscribe to such a proposition. The right of a father to care for, watch over, and bury, the dead body of his minor child has always been recognized and protected by the law (see 3 Am. & Eng.Ency.Law [1st Ed.] p. 51, note 4); and wherever a legal right is violated or trespassed upon in this connection a real remedy is afforded by the law. Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am.St.Rep. 370.

In this case the evidence shows that the father was taking the corpse of his 2 1/2 year old daughter to its earthly resting place, and contracted with the defendant to carry if from one station to another through the streets of the city of Birmingham in a suitable and befitting manner, with due regard to the feelings and sensibilities of a parent thus situated. That this distance was but six or seven blocks, and that a price of $2.50 was exacted and paid for the service, and that the charge for carrying a trunk or other ordinary article of baggage of the same bulk and weight between these two points was 25 cents, were facts sufficient, in themselves, to show that the parties contemplated a different service from that given, which was shown by practically the uncontradicted evidence to be that the corpse was carried in a way naturally calculated to wound the feelings of the afflicted father, and in the same manner as a trunk or other ordinary piece of baggage would be hauled through the streets; that is, on a dray mingled together with several trunks, on which two negro men in sole charge were sitting.

As was...