Western Union Tel. Co. v. Ayers

• Decision Date: 17 December 1901
• Citation: 131 Ala. 391,31 So. 78
• Parties: WESTERN UNION TEL. CO. v. AYERS.
• Court: Alabama Supreme Court

31 So. 78

131 Ala. 391

WESTERN UNION TEL. CO. v. AYERS.

Supreme Court of Alabama

December 17, 1901

Appeal from city court of Birmingham; Chas. A. Senn, Judge.

Action by H. L. Ayers against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Walker Tillman, Campbell & Porter, for appellant.

Ward &amp Drennen, for appellee.

DOWDELL J.

The appellee, H. L. Ayers, sued the appellant, Western Union Telegraph Company, for negligent failure to deliver a telegraphic message. In each count of the complaint mental anguish and suffering is laid as an element of damage. The message which was delivered to the appellant company for transmission was as follows: "Birmingham, Ala., Oct. 10 1899. To W. H. Gill, Morris, Ala.: Ina not expected to live. Come at once. [Signed] H. L. Ayers." Ina, the person named in the message, was an infant daughter of H. L. Ayers. W. H. Gill, the person to whom the message was addressed, is the brother-in-law of H. L. Ayers, and uncle of the said Ina. The message was not delivered to Gill in time for him to reach the home of appellee before the death of appellee's daughter Ina, which occurred about 10:48 p. m. of the day on which the message was sent. It is averred in the complaint that the mental pain and anguish suffered by the plaintiff and for which damages are claimed, was on account of the absence of Gill from the bedside of plaintiff's daughter Ina in her dying moments, and that this was caused by the negligence of the defendant in transmitting and delivering the telegram. This is the first time, so far as we are advised, that the precise question here presented has been before this court. In all of the cases which have heretofore been considered by this court where damages for mental suffering have been claimed and allowed on account of negligence in the transmission or delivery of telegraphic messages, there existed a relationship of the closest and most affectionate kind, such as husband and wife, parent and child, or brother and sister, between the sendee and the person concerning whom the message was sent, and, furthermore, generally the party suing being the one who was prevented, by reason of the negligence complained of, from being present at the deathbed or funeral of such deceased relative. In cases where the damages are claimed for mental pain and suffering by the sender of the message on account of the absence of the sendee resulting from the negligence of the carrier, a like close and affectionate relation must exist between the sender, sendee, and the person concerning whom the message is sent. That the father of Ina in the present case suffered great mental pain and anguish on account of her approaching death was most natural, and the law would presume as much; but how the absence of a brother-in-law on such occasion could add to the intensity of his anguish and...