Western Union Tel. Co. v. Adair

• Decision Date: 29 April 1897
• Citation: 115 Ala. 441,22 So. 73
• Parties: WESTERN UNION TEL. CO. v. ADAIR.
• Court: Alabama Supreme Court

22 So. 73

115 Ala. 441

WESTERN UNION TEL. CO. v. ADAIR.

Supreme Court of Alabama

April 29, 1897

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by A. J. Adair against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Walker Porter & Walker, for appellant.

D. D McLeod, for appellee.

COLEMAN J.

The plaintiff (appellee) sued to recover damages sustained in consequence of the negligence of the defendant in not properly dating at the place of reception a telegram delivered to defendant at Marshall, Tex., for transmission to plaintiff, "by his brother, as his agent, and for his benefit." The telegram delivered to defendant for transmission read as follows:

"Marshall, Texas, 11-16, 1895.

"To A. J. Adair, care Iron Works, Anniston, Ala.: Mother died this morning.

"[Signed] W. A. Adair."

The telegram delivered read as follows:

"Received at Anniston 11-14, 189

"Dated Marshall, Tex. 16

"To A. J. Adair, care Iron Works: Mother died this morning.

"[Signed] W. A. Adair."

The plaintiff avers that he was misled by the heading and date "Received at Anniston 11-14, 189"; that on account of the obscurity of the statement and date, "Tex. 16," he overlooked it, and believed from the dispatch that his mother died on the morning of the 14th; that he knew that, if she had died on the 14th, he could not attend her burial; that if he had known that she died on the 16th, the day the telegram was received, he could and would have attended her burial. The plaintiff claims damages for breach of contract and mental suffering. The right to recover for mental suffering was raised both by demurrer to the complaint and by instructions requested for the jury. There was no controversy but that the telegram was promptly transmitted and delivered. The damages claimed are based upon the negligence in not properly dating the telegram, as stated. The defendant pleaded the general issue, and also contributory negligence. The contributory negligence, as averred in the plea, consisted in plaintiff's failure or neglect to notice that the telegram was dated "Marshall, Tex. 16," and could not, therefore, have been received at Anniston on the 14th, as it purported. The plea avers that the exercise of reasonable care on the part of the plaintiff would have led to the discovery of the error inadvertently committed by the defendant in dating the reception of the telegram "11-14." In the cases decided by this court in which the sendee of the telegram was plaintiff, the complaint showed that the plaintiff, either directly or per alium, was a party to the contract; and the opinions seem to concede the proposition that, if such relationship did not exist, an action for the breach of the contract could not be maintained by the sendee. Daugherty v. Telegraph Co., 75 Ala. 168; Telegraph Co. v. Henderson, 89 Ala. 510, 519, 7 So. 419; Telegraph Co. v. Wilson, 93 Ala. 32, 9 So. 414; Telegraph Co. v. Cunningham, 99 Ala. 314, 14 So. 579; Kennon v. Telegraph Co., 92 Ala. 399, 9 So. 200. The complaint in the present case avers that the sender contracted as the agent of the plaintiff with the defendant. We have examined the abstract carefully, and have been unable to discover any evidence tending to sustain this averment of the complaint; nor is there any evidence tending to show a ratification of the contract, except we regard the institution of this suit as such ratification. See authorities supra; West v. Telegraph Co., 39 Kan. 93, 17 P. 807; Id., 7 Am. St. Rep. 530, and notes. In view of the pleadings as framed, and all the evidence, the defendant was entitled to the general affirmative charge, and the court's refusal to so instruct the jury at the request of the defendant was error.

It is earnestly urged by counsel for appellant that we modify the rule which prevails in this state,-that mental suffering may be a proper element of damages in actions of this character. We have considered the cases in which a different...