Western Union Telegraph Co. v. Northcutt

• Decision Date: 17 December 1908
• Citation: 158 Ala. 539,48 So. 553
• Parties: WESTERN UNION TELEGRAPH CO. v. NORTHCUTT.
• Court: Alabama Supreme Court

48 So. 553

158 Ala. 539

WESTERN UNION TELEGRAPH CO. v. NORTHCUTT.

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 Avie Northcutt against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The first assignment of error is that the court erred in refusing to sustain defendant's motion to strike the following averments of the complaint: (1) "The said Jack Van Horn and Sallie Van Horn, her mother, could have reached plaintiff's home before her husband, Harry Northcutt, was buried, and could have comforted and consoled plaintiff in her sore affliction; and plaintiff avers that on account of plaintiff's negligence and carelessness in delivering said message plaintiff was prevented from having the comfort and consolation in her affliction which her mother and father could have and would have rendered her, had they been present while her husband was lying a corpse and also at the burial." (2) Also the words, "and Sallie Van Horn her mother," and the words, "and her mother," where the same appear in the first and second counts of the complaint.

The second assignment of error is that the court erred in refusing to strike from the complaint those words set out in the first assignment of error, numbered 1 and 2, and the following: "Plaintiff's said father, Jack Van Horn and Sallie Van Horn, her mother, could have reached the place where plaintiff's husband, Harry Northcutt, was lying dead, in time to have been with plaintiff and consoled and comforted her before and at the time of her husband's burial, and during the time of her bereavement." And "the plaintiff was prevented from having the presence consolation and comfort of said father and mother before and at the time of her husband's burial, and during her bereavement." And defendant further moves to strike from said second count the entire averment of damages as therein set forth.

The third assignment of error is that the court erred in refusing to strike those certain averments by which plaintiff claimed damages by reason of the alleged fact that she lost the consolation and comfort which she would have received from her father, Jack Van Horn, as contained in said complaint.

The fourth and fifth assignments of error allege error in overruling demurrers to the first and second counts of the complaint, which necessitates the setting out of the camplaint, which is as follows:

Count 1: "Plaintiff claims of defendant the sum of $1,800 as damages for the breach of a contract made by plaintiff through her agent, A. D. Northcutt, and defendant, on or about the 1st day of October, 1906, by the terms of which defendant undertook to transmit from Nauvoo, Ala., to Dora Ala., the following message: 'Nauvoo, Alabama, 10/1. Jack Van Horn, Dora, Alabama. Harris killed at mines. Notify Jack at once at Empire. A. D. Northcutt.' And plaintiff avers that at the time of making said contract the defendant was engaged in the business of transmitting and delivering telegraphic messages for hire, and that she paid to defendant the charges for sending such message from Nauvoo, Ala., and delivering the same at Dora, Ala. And plaintiff avers that defendant broke said contract, in this: That it was negligent and careless in delivering said message to said Van Horn at Dora, Ala.; and plaintiff avers that, had the message been delivered to her father, Jack Van Horn, within a reasonable time, her father, the said Jack Van Horn, and Sallie Van Horn, her mother, could have reached plaintiff's home before her husband, Harris Northcutt, was buried, and could have consoled and comforted plaintiff in her sore affliction; and plaintiff further avers that on account of plaintiff's negligence and carelessness in delivering said message plaintiff was prevented from having the comfort and consolation in her affliction which her father and mother could have and would have rendered to her, had they been present with her while her husband was lying a corpse, and also at his burial, on account of which plaintiff suffered great injury to her feelings and mental anguish, to her damage," etc.

Count 2: Same as count 1 down to and including the message, with the following averment: "And defendant contracted and undertook for a certain sum of money, which plaintiff's agent then and there paid to defendant, to deliver said message to plaintiff's father, Jack Van Horn, at Dora, Ala. Plaintiff overs that defendant was engaged in the business of transmitting telegraphic messages for hire between two said places; and plaintiff avers that defendant broke said contract, in this: That it was negligent and careless in delivering said message to said Jack Van Horn at Dora, Ala.; that, had said message been delivered to plaintiff's father, the said Jack Van Horn, within a reasonable time, plaintiff's said father, Jack Van Horn, and Sallie Van Horn, her mother, could have reached the place where plaintiff's husband, Harris Northcutt, was lying dead, in time to have been with plaintiff and consoled and comforted her before and at the time of her husband's burial and during her bereavement; and that by reason of defendant's negligence and carelessness in delivering said message to the said Jack Van Horn at Dora, Ala., plaintiff was prevented from having the presence, consolation, and comfort before and at the time of her husband's burial, and during her bereavement, on account of which plaintiff suffered great injury to her feelings and mental anguish," etc.

The following demurrers were interposed to the counts separately: "(1) It does not appear that defendant was informed of the alleged agency of A. D. Northcutt. (2) It does not appear that plaintiff suffered in person or estate by the alleged failure to deliver said telegram. (3) The facts alleged do not show that A. D. Northcutt was an agent of plaintiff in sending the telegram set out herein. (4) The facts alleged therein show no right of recovery by plaintiff in this action. (5) The facts alleged therein fail to show that plaintiff sustained any damages by reason of the alleged failure of defendant to deliver the telegram therein described. (6) The damages therein claimed are remote, and are not recoverable on the facts alleged. (7) It is not shown in what respect defendant violated its said duty or contract. (8) It is not shown that the alleged damages followed as a proximate result of defendant's alleged wrong. (9) Said count is insufficient and indefinite, in that it is not made to appear wherein defendant was in default in the premises. (10) No damages to the person or estate of plaintiff are claimed in and by said count."

The sixth assignment of error is that the court erred in allowing plaintiff to be asked, over the objection of defendant, this question: "After the telegram was sent to your father at Dora, notifying him of the death of your husband, did your father come to Nauvoo?" And the next assignment is as to her answer, "Not until after the funeral."

The seventh assignment of error is to permitting the question to plaintiff, concerning the time from the sending of the telegram to the burial, "Now, during that time was your father, Jack Van Horn, with you?" and the next to the answer, "He wasn't there during the funeral."

Assignments of error 8 and 8 1/2 are to the question, "You had no relatives there?" and the answer, "No, sir."

The ninth assignment is to the following question: "I will withdraw that question, and ask you if, on account of the absence of your father, you suffered any mental affliction or suffering?" and assignment 9 1/2 to the answer to the same, which is not put down in the transcript.

Assignments 10 and 10 1/2 are to the question, "I will ask you if, on account of the absence of your father from the time your husband was killed and after you sent the telegram, and up to the time he was buried, up to the time he came there, and on account of that absence, you suffered any injury to your feelings and mental anguish?" and the plaintiff's answer, "Yes, sir."

Assignments 19, 20, and 21 are as follows:

"(19) In sustaining plaintiff's objection to the question propounded to Shepherd, the operator, 'Did Mr. Northcutt state to you that he was sending the message as agent for plaintiff in this case?'

"(20) Separately erred in sustaining plaintiff's objection to the following questions propounded by defendant to Shepherd: (a) 'Did any one give you any notice of any kind whatever that plaintiff in this case was the real sender of the message, and that Mr. Northcutt was simply sending it as an agent?' (b) 'State whether or not you had any information that plaintiff in this case was the sender of the message, and that A. D. Northcutt was acting merely as an agent.' (c)'I will ask you whether or not you knew that she had anything to do with the message, or was in any way connected with it.'

"(21) The court erred in its oral charge as follows: 'So, then, gentlemen, if you believe from the evidence that Mr. A. D. Northcutt was the agent of plaintiff, and that defendant was negligent in and about its delivery, and that on account of that negligence plaintiff's father was prevented from coming to her relief and administering to her consolation and comfort during her grief, then, gentlemen, it will be your duty to find for plaintiff."

Assignment 22 has reference to the following refused charges requested by defendant:

(1) General affirmative charge.

(2 and 3) Affirmative charges as to the first and second counts.

(4) "If you believe the evidence, you cannot award any damages to plaintiff by reason of any mental pain and anguish that plaintiff may have suffered by reason...