Middleton v. Western Union Telegraph Co.

• Decision Date: 12 June 1913
• Citation: 62 So. 744,183 Ala. 213
• Parties: MIDDLETON v. WESTERN UNION TELEGRAPH CO.
• Court: Alabama Supreme Court

62 So. 744

183 Ala. 213

MIDDLETON v. WESTERN UNION TELEGRAPH CO.

Supreme Court of Alabama

June 12, 1913

Rehearing Denied June 30, 1913

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by Mrs. H.V. Middleton against the Western Union Telegraph Company, for damages for delay in delivering telegram. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The allegations of the complaint are in effect that H.V Middleton and the present plaintiff were the parents of an afflicted female child, which was a student and residing in the building maintained by the state of Alabama, for the instruction of the blind at Talladega, Ala., and that on May 12th, there was a severe storm, and the morning papers following carried an account of Talladega being cyclone-swept, a number dead, and quite a list of damages stating also that the State School for the Deaf, the State School for the Blind, the Alabama Synodical College, two large negro schools, and a number of business houses were demolished, and that the names of the dead and injured were not now obtainable; that said item was read by plaintiff that it was calculated to and did inspire great mental pain and anguish, uncertainty and distress of mind as to the safety of plaintiff's daughter, and that plaintiff facilitated the departure of her husband for Talladega, and in great anxiety and perturbation of spirit waited throughout the day at her home in Birmingham for some message regarding the condition found by her husband upon his arrival at Talladega, and as to the safety of their daughter, and that Middleton, the husband, at 3:30 p.m. did deposit and place with the servant or agent of defendant at Talladega for the sole benefit and interest of the plaintiff, at the same time advancing to the said servant or agent of defendant a sum of 25 cents charges, the following telegram: "Mrs. H.V Middleton, 904 First Avenue, West End, Birmingham, Ala. No damage to school and children. Home 7:30 alone. H.V. Middleton." And that same was deposited solely for the benefit of plaintiff, and to relieve her mind of uncertainty, fear, and pain. The breach alleged is the failure to promptly transmit and deliver for more than five hours, with the attendant damages. The court granted the motion to strike the several elements of damages for mental anguish, whereupon the plaintiff took a nonsuit to bill of exceptions.

Francis M. Lowe, of Birmingham, for appellant.

Geo. H. Fearons, of New York City, and Forney Johnston, of Birmingham, for appellee.

Where a telegraph company delays a message, and prolongs the mental anguish of the addressee, damages may be recovered; there being no distinction between the prolongation of mental anguish and the negligent causing of mental suffering.

ANDERSON J.

In some cases it has been held that there can be no recovery for mental anguish where the negligence of the defendant telegraph company merely causes a prolongation of mental anguish already existing, but which a delivery of the message would have relieved. 37 Cyc. 1786; Sparkman v. Western Union Co., 130 N.C. 447, 41 S.E. 881; Rowell v Western Union Co., 75 Tex. 26, 12 S.W. 534, and other Texas cases. On the other hand, several very respectable courts have failed to appreciate a distinction between the production of mental anguish and the prolongation of same, and we agree with these courts, in the holding that the distinction attempted by the Texas Court and adopted by the North Carolina court is too shadowy, and in legal and physical results is merely imaginary. Western Union Co. v. Hollingsworth, 83 Ark. 39, 102 S.W. 681, 11 L.R.A. (N.S.) 497, 119 Am.St.Rep. 105, 13 Ann.Cas. 397; Dayvis v. Western Union Co., 139 N.C. 79, 51 S.E. 898 (wherein the holding on this point in the Sparkman Case, supra, was disapproved); Fass v. Western Union Co., 82 S.C. 461, 64 S.E. 235; Willis v. Western Union Co., 69 S.C. 531, 48 S.E. 538, 104 Am.St.Rep. 828, 2 Ann.Cas. 52; Connelly v. Telegraph Co., 100 Va. 51, 40 S.E. 618, 56 L.R.A. 663, 93 Am.St.Rep. 919; 3 Sutherland on Damages, § 975. While this court has limited the...