Western Union Telegraph Co. v. Holland

• Decision Date: 10 November 1914
• Docket Number: 599
• Citation: 11 Ala.App. 510,66 So. 926
• Parties: WESTERN UNION TELEGRAPH CO. v. HOLLAND.
• Court: Alabama Court of Appeals

66 So. 926

11 Ala.App. 510

WESTERN UNION TELEGRAPH CO. v. HOLLAND.

No. 599

Court of Appeals of Alabama

November 10, 1914

Rehearing Denied Dec. 15, 1914

Appeal from Tuscaloosa County Court; A.H. Alston, Judge.

Action by Lena Holland against the Western Union Telegraph Company for damages for delay in delivery of telegram. Judgment for plaintiff, and defendant appeals. Affirmed.

The following charges were refused to defendant:

(1 and 2) Affirmative charge with hypothesis. (3) No more than nominal damages. (4) Recovery cannot exceed 25 cents the amount paid for the telegram. (5) They should not award plaintiff any damages because of mental suffering or anxiety or distress. (6) Same as 5. (7) There can be no recovery in this case of punitive or exemplary damages, but only actual damages, that is, such as will compensate plaintiff for such pecuniary loss, if any, as she may have sustained by defendant's failure to deliver to J.M. Holland promptly on February 22, 1913, the message referred to in the complaint and in the evidence. (8) There is no evidence in this case tending to show that the failure by defendant to deliver promptly the message in evidence was due to any negligence on the part of defendant or its agent. (12) I charge you that, so far as the failure to deliver promptly the message described in the complaint and introduced in evidence is concerned, if you believe the evidence in this case, the defendant has excused itself from any liability because of its having failed to deliver said message promptly on February 22, 1913. (13) Same as 12 down to and including the words, "February 22, 1913," and adds: And the only remaining question is whether the defendant or its agent upon finding that said message could not be promptly delivered should have informed plaintiff of that fact. The reason for so informing plaintiff in such a case is in order that you may be aware of the situation and adopt such other means of communicating with the sendee as may be available to her. And if you are reasonably satisfied from the evidence in this case that when defendant's agents who handled said message found that it could not be delivered promptly on February 22d, knew that the means which they had adopted namely, United States mail, was the most expeditious means of conveying to J.M. Holland the contents of the message, and that if plaintiff had been then informed that said message had not and could not be delivered she could not by any other means reasonably in her power or obtainable by her have communicated with the said J.M. Holland earlier than by the means adopted by defendant's agents, and that by the means which they adopted the contents of the message were conveyed to him as early as plaintiff could have conveyed them by any other means, then plaintiff is not entitled to recover any damages for mental anguish or distress, but only the amount paid for sending the message, with interest therein. (14) This is a case brought by plaintiff against defendant for a breach of contract; that is, a contract to deliver a telegraph message to J.M. Holland at Kellerman, and the only thing plaintiff is entitled to recover is compensation for such loss and injuries as she had sustained and she is not entitled to recover damages for any loss or injuries which did not naturally and proximately result from defendant's failure to deliver the message, or such as were in contemplation of both plaintiff and defendant at the time said contract was made; that is to say, at the time the message was delivered to defendant for transmission. (15) This is a case brought by plaintiff against defendant for breach of a contract; that is, a contract to deliver a telegraphic message to J.M. Holland at Kellerman. And the only thing plaintiff is entitled to recover is compensation for such loss and injuries as she may have sustained, and she is not entitled to recover damages for any loss or injury which did not naturally and proximately result from defendant's failure to deliver the message, or such as were in contemplation of both plaintiff and defendant at the time said contract was made; that is to say, at the time the message was delivered to defendant for transmission. And I charge you that the evidence does not show that there was in the contemplation of the parties at the time said contract was made any mental anguish or distress resulting to plaintiff from a failure to deliver promptly the message referred to.

In its oral charge, the court said:

"I charge you that, if Melvin knew that the line was not working beyond its place, it was the duty of the agent to have said to Mrs. Barnes, the agent of Mrs. Holland 'This telegram cannot be received with the understanding that it goes immediately out, as the lines are not working,' and that he should have given her that information."

The court said, after exception had been reserved:

"I will say between the point of receiving it, and its destination. If the jury find it was known up here, and if Melvin knew it, and of course the jury have to determine that. If Melvin did not know the line was not in operation, then, of course, he could not inform Mrs. Barnes."

Forney Johnston, of Birmingham, and Henry A. Jones, of Tuscaloosa, for appellant.

Brown & Ward, of Tuscaloosa, for appellee.

PER CURIAM.

The case went to the jury on the first and second counts of the complaint as it was last amended. The first count contained averments to the effect: That the defendant, in consideration of the payment to it by or for the plaintiff of the price of the message, to wit, 25 cents, or of the liability incurred by the plaintiff to pay that price, undertook to transmit and deliver the following message which the plaintiff delivered or caused to be delivered to it on the 22d day of February 1913, at its office in Blocton, Ala.: "Blocton, Alabama, 2/22/1913. To J.M. Holland, Kellerman, Alabama. Come at once. Lena Holland." That said J.M. Holland is plaintiff's father-in-law, and that his son, the plaintiff's husband, was then at his and the plaintiff's home in Blocton suffering from a severe personal injury he had received, and so continued for several days. That the defendant or its agent at Blocton who received the message at the time of such receipt knew or was informed that the plaintiff's husband was seriously ill and that said message was being sent to his said father, J.M. Holland. That the defendant failed to transmit and deliver to said J.M. Holland said message promptly, as it should have done. That in consequence of such failure the plaintiff for a long time was deprived of the opportunity of having the comfort and consolation of the presence of her husband's father with her in her distress. And the count claimed damages for the alleged breach by the defendant of its said contract. The second count contained similar and other averments, and alleged the defendant's negligent and careless failure to perform specified duties claimed to have been imposed upon it by said contract.

In several ways the defendant raised the question of the plaintiff's right to recover damages for mental suffering or distress. One contention is that the relation between the plaintiff, the person to whom the message was addressed, and the person whose condition occasioned the sending of it, was not such a one as would enable the former to maintain a claim to damages for mental suffering attributed to her being deprived of the opportunity of securing the personal presence of the person to whom the message was sent in the time of the plaintiff's trouble because of the serious personal injury from which her husband was suffering. In this connection the counsel for the appellant refer to the decision in the case of Western Union Telegraph Co. v. Ayers, 131 Ala. 391, 31 So. 78, 90 Am.St.Rep. 92. In that case it was held that a father of a sick child was not entitled to recover such damages claimed to have been sustained as a result of the nondelivery of his telegram summoning his brother-in-law to the child's bedside. It was held that the relationship there disclosed was not shown to be such a close and affectionate one as to make applicable to the case the doctrine of recoverable damages on account of mental pain and suffering, as it was not presumable that the absence

of the sender's brother-in-law could have added materially to the former's distress occasioned by his child's sickness and death. In the case at bar there was not a similar absence of support for such an inference. The relationship disclosed was by no means a remote one. Between the sender and the person for whom the message was intended it was as close as any relationship by affinity; and certainly there was no remoteness in the relationship of each of them to the person whose condition was the occasion of sending the message. Unless there is something exceptional in the relations existing between a wife and her husband and his father, it is but natural to suppose that a wife whose husband is the victim of a serious personal injury may desire the aid, comfort, and support to be expected from the personal presence of his father, and that she will be distressed at the failure to serve its purpose of a message asking him to come at once. Other rulings made since the one above mentioned plainly show that the limitation of the rule allowing the recovery of damages for mental suffering which was stated in the opinion in the case relied upon is not applicable to such a case as the one at bar. Western Union Telegraph Co. v. Crocker, 135 Ala. 492, 33 So. 45, 59 L.R.A. 398; Western Union Telegraph Co. v. Saunders, 164 Ala. 234, 51 So. 176, 137 Am.St.Rep. 35; Western Union Telegraph Co. v. Bennett, 3 Ala.App. 275, 57 So. 87.

Another contention is that such damages are not...