Lay v. Postal Telegraph Cable Co.

• Decision Date: 09 February 1911
• Citation: 171 Ala. 172,54 So. 529
• Parties: LAY v. POSTAL TELEGRAPH CABLE CO.
• Court: Alabama Supreme Court

54 So. 529

171 Ala. 172

LAY v. POSTAL TELEGRAPH CABLE CO.

Supreme Court of Alabama

February 9, 1911

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by William P. Lay against the Postal Telegraph Cable Company. Judgment of nonsuit, and plaintiff appeals. Reversed and remanded.

Webb McAlpine & Brown, for appellant.

Fitts &amp Leigh, for appellee.

SAYRE J.

Plaintiff in the court below reserved for review in this court rulings upon the pleadings, and upon the admissibility of evidence which drove him to a nonsuit. The judgment entry recites that "plaintiff takes a nonsuit with bill of exceptions on account of adverse rulings of court on pleadings and evidence during the trial of the cause." In Downs v. Minchew, 30 Ala. 86, the recital was that "the plaintiff excepted to the ruling of the court, and takes a nonsuit." The court held that the record established the fact that the decision below was the cause of the nonsuit, and that the appellant had excepted with a view to a revision by this court, and proceeded to a review of the questions reserved. That case followed a principle extracted from earlier cases, which were cited, and has itself been followed in Laster v. Blackwell, 128 Ala. 143, 30 So. 663. We are required, therefore, as for this objection, to consider the questions ruled adversely to the appellant.

Appellant sought to recover damages resulting from a mistake in a telegram sent to him by his agent. The complaint contained several counts in contract wherein it was shown that shortly before the occurrence in question plaintiff left home expecting that in a few days his wife would be delivered of a child. He made arrangements for telegraphic information as to the result. The telegram delivered to the defendant company for transmission read as follows: "To W. P. Lay, c/o Toomer Lbr. Co., Mahned, Miss. Mary and baby doing well. K. C. Cuthbert." As delivered to him the message read: "Mary and baby dieing. J. C. Cutsbert." The complaint claimed damages for that, in addition to time and money lost in leaving his business and returning to his home as he would not have done otherwise (not including, however, the price paid for the transmission of the telegram), as a result of the telegram so received by him, "he was overcome with grief, was startled and shocked, and was made to suffer excruciating mental pain and anguish." January 22, 1910, defendant filed its motion to strike from each count of the complaint those words we have just quoted, assigning, as we will assume, every conceivable reason why they should be stricken. The record shows that on April 4, 1910, the court ordered and adjudged that "defendant's motion to strike portions of the complaint be and the same is hereby granted." For some reason, undisclosed, the motion was refiled June 18th, and on the same day the court ordered and adjudged that "defendant's motion as refiled to strike portions of the complaint be and the same is hereby granted." In each case the record proper shows that the plaintiff excepted. Upon the complaint as thus amended by the court's ruling, the parties went to trial. During the progress of the cause, plaintiff offered in various ways to show that he had suffered mental pain and anguish, and reserved exceptions to those rulings which sustained objections to the evidence thus offered. Some of these questions asked the plaintiff to state his mental condition upon receipt of the message. In any state of the record these questions called for incompetent evidence. Western Union v. Cleveland, 53 So. 80. One question, addressed to Miss Cuthbert, who appeared as a witness for plaintiff, asked her to state whether plaintiff, upon his return home--and before he learned that the message delivered to him was a mistake, as the circumstances indicated--seemed to be distressed. If the complaint at that time contained the averment in respect to plaintiff's anguish of mind, this testimony was competent. It has often been so ruled by this court. In Western Union v. Henderson, 89 Ala. 510, 7 So. 419, 18 Am. St. Rep. 148, it was held that "the natural utterances and expressions indicative of pleasure, displeasure, pain, or suffering are competent original evidence that may be received in proof of physical or mental state, whenever that state is a pertinent inquiry." In Western Union v. Manker, 145 Ala. 418, 41 So. 850, a witness was permitted to show that she saw the plaintiff crying. And so a witness may say that a person "looked frightened" (Thornton v. State, 113 Ala. 43, 21 So. 356, 59 Am. St. Rep. 97, where a number of cases are cited); "seemed to be suffering" (S. & N. Ala. R. R. Co. v. McLendon, 63 Ala. 266); "looked excited" (Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am. St. Rep. 28). Indeed, our decisions to the same general effect have been so numerous that the ruling of the trial court is to be explained only upon the assumption that the complaint at the time of this ruling contained no allegation of mental suffering. Upon this assumption, however, all those rulings were free from error.

Appellant suggests that, since the allegations stricken stated a case for general damages, the rulings on the evidence cannot be justified on the ground that there was in the complaint at the time no averment of mental pain and anguish. In other words, the suggestion is that, so far as allegation circumscribed the introduction of proof, the complaint meant as much after the motion to strike had been granted as it did before. "Special, as contradistinguished from general damage, is that which is the natural, but not the necessary consequence of the act complained of." Roberts v. Graham, 6 Wall. 578, 18 L.Ed. 791. In Sloss-Sheffield Company v. Dickinson, 52 So. 594, the plaintiff sued in Code form claiming damages generally for an assault and battery. This court held that damages for mental suffering and humiliation could not be recovered unless alleged, following a dictum in Irby v. Wilde, 150 Ala. 402, 43 So. 574, where it was held that, because there may be a technical assault and battery without pain or anguish, such damages may not be recovered unless specially pleaded. Dissenting, Judge Mayfield and the writer here used this language: "General damages are such proximate damages as result in the usual course of things, and of which the defendant does not need to be specially informed. General damages are defined by the Supreme Court of Massachusetts as 'only such damages as any other person, as well as the plaintiff might, under the same circumstances, have sustained from the act set out in the declaration.' Baldwin v. Western Railway Corp., 4 Gray (Mass.) 333. They are presumed to follow the wrong charged, though they may in fact be nominal only. Special damages are such as result proximately, but not ordinarily, from the wrong complained of. They are either superadded to general damages arising from an act injurious in itself, or are such as will arise from an act not actionable in itself, but injurious only in its consequences--such as really occur. Of a claim of such damages the defendant ought to be specially informed." It is not understood that the majority of the court controlling the decision in that case denied the general principle here stated, but only its application to the Code form as it had been previously construed. Nor is this language of the dissent reproduced with any purpose of calling attention to the difference of opinion in that case, but only to show that no opinion was there expressed by any one which can be cited here as furnishing an analogy for holding the damages here claimed for mental pain and anguish to be general rather than special. In this case no general damages are claimed. However anomalous may be the position of those...