Western Union Telegraph Co. v. Henderson

• Decision Date: 08 April 1890
• Citation: 89 Ala. 510,7 So. 419
• Parties: WESTERN UNION TEL. CO. v. HENDERSON.
• Court: Alabama Supreme Court

7 So. 419

89 Ala. 510

WESTERN UNION TEL. CO. v. HENDERSON.

Supreme Court of Alabama

April 8, 1890

Appeal from circuit court, Mobile county.

Actions by Louis Henderson, against the Western Union Telegraph Company, to recover damages for defendant's failure to deliver a telegram within a reasonable time after its receipt. The first plea was the general issue, and the second and fifth pleaded, in bar of the action, that the message was an unrepeated message.

The general charge given by the court of its own motion, recites the varied contentions of the parties, and is in the following language: "This is an action, brought by the plaintiff against the defendant, to recover damages for not delivering a message which he (the plaintiff) says he sent from St. Elmo to Grand Bay, to Dr. Rohmer, requesting him to come and attend his wife, who was very low. The message is before you, The plaintiff says that the defendant received that message, but failed to deliver it. If he has proved to your satisfaction that he sent a message to Dr. Rohmer from St. Elmo to Grand Bay, and that it was received at that office, it was the duty of the defendant to deliver it, if Dr. Rohmer was within the delivery limits of that place. The defendant would have to show that he was not within the limits. The burden of proof is on it. It pleads that the law requires the plaintiff to make out a prima facie case. If the plaintiff has shown that he sent the message mentioned, and it was received at Grand Bay, (and there is no dispute about that, for it is conceded that he sent the message, and that the message was received at Grand Bay,) it was the duty of the defendant to deliver that message; and if the plaintiff has proved that it was not deliver within a reasonable time, he has made out a prima facie case and, unless the defendant shows something that would prevent a recovery, the plaintiff is entitled to recover. The defendant says that under this rule the plaintiff cannot recover. The rule reads as follows: "A message to be delivered, specially, beyond the free-delivery limits of the terminal office, and for which the delivery charge is not given in the tariff-book, will be accepted upon the payment or guaranty of an amount sufficient to cover the message tolls and the probable cost of delivery. The words 'report delivery charges,' when the charges are to be paid by the sender, or the words 'delivery charges guarantied,' when they are to be paid by the addressee will be inserted in the check of such message, and will be counted and charged for," etc. The defendant says that the plaintiff ought not to recover, because Dr. Rohmer lived more than half a mile from the telegraph office where the telegram was received. The court charges you that this rule is a reasonable one, that the company had a right to make this rule, but it is their duty to make it known. People must have notice of those rules, even if they are reasonable. The defendant must show that the plaintiff, at the time he sent this message, knew of that rule, and that he failed to comply with it. He has to prove this to your satisfaction. *** The plaintiff has introduced evidence about the distance between Dr. Rohmer's house and this telegraph office, and the defendant has introduced evidence on the same subject. It is for you to say what is true. If you find, now, that it was within a half mile, you need not go further on that question because it was the duty of the telegraph company to have delivered it. If he was within the limits, it was their duty to deliver it, and the plaintiff was not required to do anything more than he did. If, however, you find that it was not within a half mile, but it was more than a half mile, then, gentlemen, the company must show you that the plaintiff in the case knew of the existence of this rule, and that he did not comply with it. The defendant says that the plaintiff employed the telegraph agent there to write this for him, thereby making him his agent for that time. Well, if he did get him to write it, he did make him his agent for that time, and if the telegraph operator knew of these rules the plaintiff knew of these rules, because, if he got an agent to perform a duty, whatever the agent knew in connection with that duty the plaintiff himself knew. *** Now, if you find that the plaintiff has a right to recover, the next question for your consideration, and a very important one, is, what damages is he entitled to? He is entitled to what the law calls 'compensatory damages,' of actual damages that he has sustained. Whatever he paid out for the telegram, if he paid anything, would be an item of compensatory damages. He has to prove to you what his damages are. Whatever he paid out would be actual damages, if they failed to comply with the agreement. He says he got a horse and buggy, and went for the doctor; but I do not recollect whether he proved he paid anything for the horse and buggy, or became liable to pay anything. If he did not pay, or become liable to pay, anything, he could not recover for that. If he did, he would be entitled to recover what he proved he paid out for it, or became liable to pay. The law includes whatever money he paid out, or became liable for, on account of the failure of the company to do its duty. But the law goes further. The law says the plaintiff may recover for wounded feelings,-for the pain, either mental or physical, that he suffered. The plaintiff says that he evidence shows to you that, while his wife was in agony,-it is for you to say what the proof is,-he remained with her from the time the doctor could have gotten there that same evening if the telegram had been delivered, and had to witness her anguish and pains, which the doctor could have relieved if he had gotten there. It is not what she suffered, but he suffered, by witnessing his wife's condition; and it is confined to the suffering he experienced during the life of his wife, and does not include his anguish after her death. You cannot give any damages on account of her death or of her sufferings, but for his suffering in witnessing the condition of his wife would be a portion of the actual damages, if you believe from the evidence the doctor could have gotten there. From the time of the doctor could have gotten there, and could have assuaged or lessened her pain, and the plaintiff's mind could have been relieved by the sufferings of his wife being lessened, then whatever damages he has sustained arising from that cause you have the right to give him as a actual damages. *** Those are the damages you will give, if you find for the plaintiff. The plaintiff claims vindictive damages. *** Vindictive damages are given where the party is guilty of malicious conduct, the evidence showing that he was actuated by an evil motive. I am requested to charge you on that. I am requested to charge you that, if you believe the evidence, you cannot find vindictive damages in this case, and I give you that charge. I could not give the charge unless I was requested to do so. You cannot find vindictive damages. You may find actual damages, and actual damages are such as I have stated."

The defendant requested the court to give, among others, the following charge: "(9) The court charges the jury that a rule or regulation requiring extra compensation for the delivery of a message beyond the limit of a half mile was a reasonable rule and regulation, which the defendant had a right to demand that the plaintiff should comply with, and that, if the plaintiff failed to comply with such reasonable rules and regulations, said company was not bound to deliver said message to the person to whom the same was sent, beyond said half-mile limit." The court refused to give this charge, and defendant excepted.

STONE C.J.

St. Elmo and Grand Bay are two stations on the line of roads operated by the Louisville & Nashville Railroad Company. They are five miles apart, and are small villages. Louis Henderson resided near St. Elmo station, and Dr. Rohmer, his family physician, resided near Grand Bay station. At noon, June 26, 1887, Henderson procured to be dispatched at St. Elmo, to Dr. Rohmer at Grand Bay, a telegraphic message in the following language: "Come, first train, to see my wife. Very low." This message was marked: "Prepaid, 25 cents." In addition, both the sender and the telegraphic operator testified that that sum was prepaid. The operator testified that Henderson inquired what the charge was, and, on being informed it was 25 cents, paid it to him. The message, though not repeated, reached the operator at Grand Bay without mistake and without delay. Dr. Rohmer testified that he received this telegram about 9 o'clock A. M., June 27th, the day after its transmission; that it was handed to him at his residence,-but he did not state by whom. He testified, further, that, if he had received the message on the 26th, he would have obeyed it, traveling either by train or by private conveyance. He reached the patient about noon on 27th, and relieved the intensity of her suffering; but she died about six hours afterwards. He did not know whether, if he had reached her the day before, her life could have been saved. Plaintiff testified that when the telegram was sent his wife was suffering acutely, and that her suffering increased until the arrival of the doctor, when he alleviated it.

The present action was brought to recover damages for the non-delivery of said telegram within a reasonable time. The defendant interposed five pleas in bar, but at present we propose to consider only those on which issues of fact were formed. These are pleas 3 and 4. A demurrer was interposed by plaintiff to each of these pleas, 3 and 4, and the demurrers were overruled. There was no error in this.

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