Western Union Telegraph Co. v. Benson

• Decision Date: 17 December 1908
• Citation: 159 Ala. 254,48 So. 712
• Parties: WESTERN UNION TELEGRAPH CO. v. BENSON.
• Court: Alabama Supreme Court

48 So. 712

159 Ala. 254

WESTERN UNION TELEGRAPH CO. v. BENSON.

Supreme Court of Alabama

December 17, 1908

Rehearing Denied Feb. 5, 1909.

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Action by J. R. Benson against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The pleadings and the facts are sufficiently stated in the opinion of the court.

The following charges were requested by, and refused to defendant:

"(3) I charge you that you cannot find a verdict for plaintiff if you believe plaintiff's evidence, and if you believe further that Bill Benson did not live within the free delivery limits of defendant's Carbon Hill office."

"(15) I charge you that the burden rests upon plaintiff to prove to your reasonable satisfaction that Bill Benson did not live over one-half of a mile from the telegraph office, and that unless you believe from the evidence that he lived within that distance you must find a verdict for the defendant.

"(16) I charge you that plaintiff's only evidence with reference to the distance from Bill Benson's office near Carbon Hill to the telegraph office in Carbon Hill is substantially set forth in the statement of Bill Benson to the effect that he lived somewhere between a quarter and a half mile, near a half a mile, from the depot, and that with this you are to weigh the testimony of all of the other witnesses on that point, and from all the testimony determine the question of distance; and I charge you that unless you are reasonably satisfied that Bill Benson lived within the half-mile limit, then plaintiff has failed to meet the burden resting upon him."

"(19) I charge you that the burden of proof as to whether Bill Benson lived within the free delivery limit rests upon plaintiff."

"(23) I charge you that free delivery is a conditional obligation on part of the defendant, contingent upon Bill Benson's residence being within the area of free delivery, and until that condition is shown the telegraph company is not in default under the pleadings and evidence in this cause."

"(28) I charge you that you cannot assume that plaintiff suffered mental pain on account of his brother's absence merely because his brother was not present at the funeral."

"(30) I charge you that the fact that plaintiff was one of six living brothers, and that five of the brothers and all four of the sisters were present at the burial, may be considered by you in determining whether or not this plaintiff suffered great mental pain at the absence of the six brothers."

"(32) I charge you, gentlemen of the jury, that in allowing a recovery in certain instances for mental suffering the law does not authorize you to guess at the amount, but does require you to consider very carefully the evidence, and decide first of all whether or not plaintiff suffered any real mental anguish, and if this suffering was trifling, and such as men of ordinary manhood and self-reliance would overlook or ignore, then you would be prohibited from awarding any substantial damages for the alleged mental suffering.

"(33) I charge you that the allowance of damages for mental pain or anguish is not to be considered by you, except after mature and careful deliberation, and you cannot award any such damages unless all of you shall agree that plaintiff actually suffered from mental pain because Bill Benson was not at the scene of the funeral as alleged, and the proper amount to be allowed plaintiff for such mental pain must be agreed upon by all of you, and if you are unable to agree on the question as to what amount should be allowed plaintiff, if anything at all, you cannot award anything but nominal damages.

"(34) I charge you that in deliberating upon the question as to whether you will award any damages at all to plaintiff for mental suffering you must consider all the circumstances and recall what other aid and assistance plaintiff had at the funeral, and if, as reasonable men, you conclude that plaintiff did not suffer any mental pain himself, you would be violating your oath if you awarded him any damages greater than 25 cents, the sum he paid for the message."

"(37) There is no presumption whatever that plaintiff suffered mental pain simply because his brother was not present at George Benson's funeral.

"(38) I charge you that there is no evidence in this case that plaintiff suffered any mental pain on account of the absence of his brother Bill Benson from the funeral.

"(39) I charge you that, before you can award any damages whatever to plaintiff for mental pain caused by his brother's absence, you must carefully and with due regard for your solemn oaths consider what aid, comfort, and assistance Bill Benson would have rendered J. R. Benson individually on the day of George Benson's funeral.

"(40) I charge you that you are authorized to consider the fact that there were present four sisters and five brothers at the funeral of George Benson in determining what aid, comfort, society, and assistance Bill Benson could have rendered J. R. Benson, had Bill Benson been present."

"(42) In determining whether or not plaintiff suffered mental pain on account of the absence of Bill Benson, you must conclusively presume that plaintiff is a man of ordinary self-reliance and force of mind, and are not authorized to presume that he is any more emotional than any grown man of ordinary strength and firmness and manhood; and you must solemnly and conscientiously consider these facts before you can arrive at a just verdict."

"(48) I charge you that the burden rests upon plaintiff to show when and where the message in question might reasonably have been delivered to Bill Benson within the free delivery limit of Carbon Hill, and your minds are left confused and uncertain as to whether ordinary and reasonable diligence would have succeeded in finding him then your verdict must be for the defendant.

"(49) I charge you that the burden is not upon the defendant, but upon plaintiff before you how Bill Benson might have been found within the free delivery limits of Carbon Hill, by a person not knowing him by name, and if your minds are confused and uncertain as to the movements of Bill Benson on July 3d, and as to the probability of being able to find him in the free delivery limits of Carbon Hill, your verdict must be for the defendant."

"(51) I charge you that if you are reasonably satisfied from the evidence that the defendant's messenger, S.D. Patterson, within a reasonable time after Bill Benson came within the free delivery limits of Carbon Hill, Ala., on the morning of July 3, 1907, went to the store of G. L. Wakefield with the message for the purpose of making delivery, and that the said Bill Benson was absent, then your verdict must be for the defendant.

"(52) I charge you that, if you believe the testimony of S.D. Patterson, then you must find that reasonable diligence was used by the defendant to deliver the telegram after Bill Benson came within the free delivery limit of the terminal office, and your verdict must be for the defendant, provided that you further find that the residence of said Bill Benson was more than one-half mile from defendant's office in the town of Carbon Hill.

"(53) I charge you that, in ascertaining the distance from defendant's office in Carbon Hill and the residence of Bill Benson, the route traveled from said office to said residence is to be considered, and not a direct line between said points.

"(54) I charge you that, in determining the distance between defendant's office in Carbon Hill and the residence of Bill Benson, you are to consider the most available route that could have been traveled between said points, and not a direct line."

"(58) I charge you that under the evidence in this case there was no train leaving Carbon Hill after the message was delivered to defendant at Nauvoo, and that the said Bill Benson came within the free delivery limits of defendant's office at Carbon Hill, by which said Benson could have come to Jasper, or any other point, and take a train that would have reached Nauvoo in time for him to have gone to George Benson's house before the funeral party left.

"(59) I charge you that, if the evidence is evenly balanced as to whether defendant was or was not negligent in the delivery of the message, then your verdict must be for the defendant."

"(68) I charge you that the damage ordinarily resulting from the breach of contract to deliver messages of the kind in question do not include mental pain of the sender at being deprived of the addressee's consolation, and in order to entitle the sender to recover such peculiar damages it must be first shown that at the time of the receipt of the message for transmission the defendant had notice of the fact that mental pain to the sender would be the natural or probable result of its failure to deliver; and I charge you that the terms of the message in this case are not sufficient predicate to serve as the basis for the recovery of damages for mental pain caused the sender by being deprived of the addressee's consolation and solace.

"(69) I charge you that, if the evidence should disclose that the defendant did not use reasonable diligence in and about the transmission of the message in question, then Bill Benson upon showing the necessary facts, might sue and recover damages for any mental pain he may have sustained by reason of his enforced absence from his brother's burial; but the message in this case did not disclose the fact that its purpose was for the purpose of obtaining for the sender the consolation and solace of Bill Benson, and I therefore charge you that no damages can be awarded to plaintiff which may have been caused...