Western Union Telegraph Co. v. Wright

• Decision Date: 09 June 1910
• Citation: 169 Ala. 104,53 So. 95
• Parties: WESTERN UNION TELEGRAPH CO. v. WRIGHT.
• Court: Alabama Supreme Court

53 So. 95

169 Ala. 104

WESTERN UNION TELEGRAPH CO. v. WRIGHT.

Supreme Court of Alabama

June 9, 1910

Appeal from Circuit Court, Jefferson County; A. H. Alston, Judge.

Action by J. J. Wright against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The first count is as follows: "Plaintiff claims of defendant $1,900 as damages, for that heretofore, to wit, on the 16th day of July, 1907, the defendant corporation was engaged in and about the transmission of messages by wire by means of electricity in the state of Alabama from, to wit Birmingham, Ala., to Myrtlewood, Ala. And plaintiff avers that on, to wit, the said date, the following message was filed at Myrtlewood, Ala., for the plaintiff at Birmingham Ala., viz.: 'Come at once, baby very low. Annie Bell.' And plaintiff avers that the defendant, acting by or through its servants or agents, received said message at Myrtlewood, Ala., as aforesaid, and that it was and became the duty of defendant, its servants or agents, to deliver said message promptly to the plaintiff at Birmingham; but the defendant, acting by or through its servants or agents, so negligently and carelessly conducted itself in and about transmitting said message that the same was never delivered or was delivered too late to enable plaintiff to reach his baby before its death, as a proximate consequence of which the plaintiff was caused to suffer great mental pain and anguish."

The amendment alluded to is as follows: "Comes the plaintiff, by attorney, and by leave of the court amends his complaint in this cause as follows: (1) By inserting, just after the words 'undertook, contracted, and agreed,' where same last appear together in said count, the following 'For and in consideration of the sum of, to wit, 25 cents, which was paid to defendant's agent at Myrtlewood'--and by adding at the end of said count the following: 'And lost the said sum so paid for said message.' " The complaint was further amended by striking from the first count the words "to reach his baby before its death," and inserting in lieu thereof the following: "To reach his wife and be with her for, to wit, twenty-four hours after the death of their baby."

The following is the oral charge of the court, designated in exception 2: "There are two directories which have gone in. One is a directory of the city of Birmingham, and the other is a directory that is gotten up by the Bell Telephone, containing the address of subscribers and their numbers. Now, I charge you upon that question that, in connection with all the evidence that is here, you are to conclude from the testimony before you whether or not this defendant company exercised the ordinary diligence that a prudent man would have exercised under similar circumstances, when he consulted a directory of the city, which is a list of citizenship generally of the city, or whether he should have gone further in his investigation, and found from the directory of the Bell Telephone Company that there were several Wrights in it, and he called up none of them. You must determine from that whether, in failing to do that, to ascertain those Wrights, although he did not find the name of Charles, although he did find several--C. E., and C. A., and C. D., I believe, are the initials of them--whether he exercised that diligence that a prudent man would have exercised under similar circumstances in undertaking to ascertain from that the place of residence of Charles Wright, in whose care the telegram was sent."

Campbell & Johnston, for appellant.

Gaston & Pettus,...