Southern Ry. Co. v. Rowe

• Decision Date: 08 June 1916
• Docket Number: 7 Div. 790
• Parties: SOUTHERN RY. CO. v. ROWE.
• Court: Alabama Supreme Court

73 So. 634

198 Ala. 353

SOUTHERN RY. CO. v. ROWE.

7 Div. 790

Supreme Court of Alabama

June 8, 1916

Rehearing Denied Dec. 30, 1916

Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.

Action by Lora Rowe against the Southern Railway Company for breach of contract. Judgment for plaintiff, and defendant appeals. Affirmed.

Damages for mental anguish are recoverable for failure to promptly deliver telegraphed ticket, where the railway agent knew it was sent to husband seriously ill that wife might have him with her when he died.

The following is the complaint:

Count 1. Plaintiff claims of defendant corporation the sum of $2,950 as damages for the breach of a contract made by and between plaintiff and defendant on, to wit, January 16, 1914 by the terms of which defendant contracted to send by telegram transportation over its line of road and connecting lines, to the husband of plaintiff at Colorado Springs Colo., for the purpose of furnishing transportation for plaintiff's said husband, Charlie Rowe, from Colorado Springs, Colo., over defendant's railroad and connecting lines, to Rock Run Station, Ala. Plaintiff avers that defendant was at the time stated a common carrier and engaged in the business of transporting passengers for hire over its line of railroad which runs to Rock Run Station, Ala Plaintiff avers that said contract was made by her, acting by and through her agent, one Frank Mitchell; that, at the time said contract was made by her with the defendant, her said husband was very ill in Colorado Springs, Colo., and plaintiff, by and through her said agent, informed defendant at the time said contract was made that her husband was seriously ill in said Colorado Springs, and that she sent said transportation to him by telegraph in order that same might reach him quickly so that he could leave Colorado Springs promptly, and arrive at Rock Run Station, Ala., before he died; and that plaintiff, as his wife, was very anxious for her husband to get back to said Rock Run Station as soon as possible that she might have him with her before he died. Plaintiff avers that by and through her said agent, Frank Mitchell, she paid defendant the sum of $34.95 for said transportation, and the transmission thereof to her husband by telegraph as aforesaid, and that defendant contracted with her as stated herein by and through one C.S. Burge, its agent and servant at Rock Run Station, Ala., at said time. Plaintiff avers that defe dant, with knowledge of the situation and condition as aforesaid, contracted as aforesaid to send said transportation to plaintiff's husband by telegraph to provide for his return as quickly as possible to Rock Run Station, Ala., so that plaintiff might have him with her before he died. Plaintiff avers that defendant broke said contract, in this, that it did not send such transportation to her husband at Colorado Springs, Colo., within a reasonable time, and that said transportation was not delivered by defendant in Colorado Springs until, to wit, January 21, 1914, and after the death of plaintiff's said husband. Plaintiff avers that if said transportation had been delivered to her husband in Colorado Springs, Colo., within a reasonable time, her husband could have and would have returned to Rock Run Station, Ala., before his death, and plaintiff could have had her said husband with her before his death, and could have given him her care and nursing, and have had the privilege and comfort of being with him during the last hours of his illness. Plaintiff avers that, as a proximate consequence of defendant's said breach of the contract, her said husband was prevented from arriving at Rock Run Station, Ala., during his lifetime, and plaintiff was prevented from having him with her during the last hours of his illness before his death, thereby causing plaintiff to suffer great mental pain and anguish, to her damage.

2. Same as 1.

3. Same as 1, with the following addition: Plaintiff further avers that, as a proximate consequence of the breach of defendant's said contract, she was put to a greater expense than the cost of said transportation or ticket for her husband from Colorado Springs, Colo., to Rock Run Station, Ala., to wit, an expense of $135 incurred in obtaining the transportation or shipment of the remains of her said husband after his said death from said Colorado Springs, to Rock Run Station; and plaintiff claims in this case as a part of the total sum herein claimed the difference between the cost of said ticket, to wit, $34.95, and said expense of $135 incurred by her as aforesaid.

The demurrers raise the question that it does not appear that defendant was engaged in the business of sending messages by telegraph, nor does it appear that defendant had any telegraph line or any other means of sending telegrams from Rock Run Station to Colorado Springs. For aught that appears, the delay complained of was caused by the agent transmitting the telegram therein referred to. It appears that the contract averred of sending a ticket by telegraph is not the business of a common carrier and is ultra vires and void. The other demurrers raise the question of the recovery of mental anguish in such case, and that the difference in the ticket and in the expense of shipping the body was not shown to be the proximate result of the failure to send transportation. The other matters sufficiently appear.

Hood & Murphree, of Gadsden, for appellant.

Hugh White, of Gadsden, for appellee.

McCLELLAN J.

The appellee instituted this action, for damages for breach of a contract, against the appellant. The defendant was a common carrier of passengers for hire between Birmingham and Anniston and Rock Run Station, in this state. Connecting railway lines, recognized by the defendant, admitted of practically continuous transportation of passengers from Colorado Springs, Colo., to Birmingham, Ala. The issues submitted to the jury were those made by general traverse of the averments of counts 1, 2, and 3 of the complaint. There was judgment for the plaintiff for $550.

The substance of the contract declared on is that the defendant, through its agent at Rock Run Station, undertook and engaged on, to wit, January 16, 1914, to telegraph transportation, over its line and connecting lines, to plaintiff's husband at Colorado Springs, Colo., for the purpose of furnishing transportation for the husband from Colorado Springs to Rock Run Station; the plaintiff through her authorized agent then paying to the agent of the defendant the sum of $34.95 "for said transportation and the transmission thereof to her husband by telegraph"; the agent of the defendant being then advised that the husband was seriously ill at Colorado Springs and that the plaintiff desired the transportation sent him quickly that he might, as he would have done, return to his home before he died. The breach averred is that the defendant did not send the transportation within a reasonable time, it not being delivered until, to wit, January 21, 1914, after the husband had died. In the first and second counts, the damages claimed are for mental distress suffered by the plaintiff because she was deprived of the privilege, comfort, and consolation of having the husband with her during his last hours and of ministering to him at that time. The third count claims, in addition, the difference between $135 required to transport the remains of the husband from Colorado Springs to Rock Run Station, and the sum of $34.95 paid to the agent of the defendant for a ticket for him from Colorado Springs to Rock Run Station.

The legal effect of the contract was that, having received at its office at Rock Run Station the price of a ticket for the transportation of a passenger from Colorado Springs to Rock Run Station--to reach which the routing should be over a part of defendant's line, thus entitling it to the benefit of a proportion of the aggregate railroad fare or transportation from Colorado Springs to Rock Run Station--the defendant obligated itself to transmit, by telegraph, to plaintiff's husband at Colorado Springs the transportation stated. Being a common carrier of passengers for hire to Rock Run Station, it cannot be affirmed as a matter of law that the complaint shows defendant's want of rightful power or authority to so obligate itself in the premises. The necessary implication from the averments of the complaint is that an appropriate passenger ticket could validly issue, out of the hand of the initial carrier, at Colorado Springs calling for transportation from that point to Rock Run Station; and, if so, the averments of the counts cannot possibly be interpreted as denying to the defendant the possession of the power or authority to receive the fare at the point of contemplated destination on its line and to obligate itself to communicate the fact of such payment to the initial carrier at Colorado Springs and to arrange for the issuance of the transportation by that carrier...