Western Union Telegraph Co. v. Morrison

• Decision Date: 09 January 1917
• Docket Number: 2 Div. 147
• Citation: 74 So. 88,15 Ala.App. 532
• Parties: WESTERN UNION TELEGRAPH CO. v. MORRISON.
• Court: Alabama Court of Appeals

74 So. 88

15 Ala.App. 532

WESTERN UNION TELEGRAPH CO. v. MORRISON.

2 Div. 147

Court of Appeals of Alabama

January 9, 1917

On Rehearing, February 10, 1917

Appeal from Circuit Court, Hale County; B.M. Miller, Judge.

Action by N.M. Morrison against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed, and application for rehearing overruled.

The complaint is as follows:

Plaintiff claims of defendant the sum of $1,500 damages for that heretofore, to wit, on April 4, 1914, defendant, in consideration of the payment to it by or for plaintiff of a certain sum of money, or of the liability incurred by the plaintiff to pay a certain sum of money, undertook to transmit and deliver from Moundville, Ala., to John M Morrison, at Pell City, Ala., a message, which plaintiff caused to be delivered to it on the aforesaid date, at its office in Moundville, Ala., informing him that a son of plaintiff was at the point of death, and requesting him to bring plaintiff's children at once to Moundville; that said John M. Morrison is plaintiff's brother-in-law, and the children referred to in said message are plaintiff's son and daughter; that defendant was put on notice by the text of said message that a nondelivery of it would cause plaintiff mental anguish; that defendant breached said contract, in that defendant failed to deliver said message to John M. Morrison, and as a proximate consequence of defendant's failure to deliver said message plaintiff was deprived of the comfort and consolation of the presence of his said children at the death and burial of his said son English, and plaintiff was caused much injury to his feelings and great mental anguish by reason of the fact that he was deprived of the presence of his children, and by reason of the fact that his said children were not present at the death and burial of his said son, their brother.

The plea in abatement was as follows:

And now comes Western Union Telegraph Company, defendant in the above-styled cause, by its attorney, and appearing specially for the purpose of interposing this plea to the jurisdiction and none other, for separate plea to the complaint and to each count thereof, separately and severally, says that this court ought not to have and maintain jurisdiction of the alleged cause of action set up therein, for the said defendant avers that the alleged cause of action therein set up, if any plaintiff has, did not arise, nor did the injury therein complained of, or the failure, if any, to deliver said message sued on occur, in Hale county, in the state of Alabama, and that plaintiff does not now, nor did he at the time of the commencement of this action, reside in said Hale county, but resides in the county of St. Clair, in the state of Alabama, in which said county defendant does business by agent, and this defendant is ready to verify. Wherefore, since the said action is brought for a personal injury within the meaning of section 6112 of the Code of Alabama (1907) in a county other than the county in which plaintiff resides, or the injury occurred, the said Western Union Telegraph Company prays the judgment of this circuit court, if said court will or ought to have further cognizance of said action.

On motion for new trial, Thomas E. Knight, one of the attorneys for defendant, made an affidavit relative to the quotient verdict in substance as follows: That the verdict was received in the courtroom by 10 o'clock p.m., and that within about 20 minutes thereafter, affiant went into the jury room where the jury had been considering their verdict in this case, and in said room found 12 separate slips of paper, wrapped in a single slip of paper; that on the 12 separate slips was entered an amount expressed in figures and, on the slip in which the separate slips were wrapped the 12 separate amounts were entered, and the total was ascertained, and this total was divided by 12, and the quotient therefrom was expressed in figures $808; that that was the only verdict for that amount that had ever been rendered in that court since the present courthouse was constructed; and that the entry of the 12 separate amounts upon the single slip of paper, the addition, and the division was in the handwriting of one of the jurors trying the case, i.e., one W.J. Stevenson.

The following charges were refused to defendant:

Assignments 17 and 19 embrace charges 3 and 5, and were the affirmative charges.

Assignment 15, embracing refused charge 1: The court charges the jury that under the evidence in this case they cannot award plaintiff any damages for mental suffering.

Assignment 16, embracing charge 2: Same as 1.

Assignment 18, embracing charge 4, same as 1. Charge 6: The court charges the jury that if they are reasonably satisfied from the evidence in this case that plaintiff ascertained that the telegraph to said John M. Morrison had not been delivered at Pell City, and that thereafter plaintiff paid defendant's agent charges for the transmission of said telegram, then such payment by plaintiff was voluntary on the part of plaintiff, and he cannot in this action recover damages for mental anguish or pain.

Assignment 21, charge 7: The court charges the jury that unless they are reasonably satisfied from the evidence in this case that said Jordan Ramey was acting as agent of plaintiff in telephoning in said message to the agent of the Postal Telegraph Company at Moundville, Ala., and that the agent of the Postal Company, after getting said message, was the agent of plaintiff in filing said message for transmission with defendant, then the jury must find the issue in favor of defendant.

Assignment 24, charge 10: Unless the jury are reasonably satisfied from the evidence in this case that said B.F. Elliott in writing said telegram at Moundville was acting

as the agent of plaintiff, then the jury must find the issues in this case for the defendant, notwithstanding the fact that the jury may find from the evidence that, some days after the telegram had been transmitted from Moundville, plaintiff paid defendant's agent at Moundville the charges for the transmission of said telegram.

Assignment 25, charge 11: The court charges the jury that, if they believe from the evidence that said telegram was intended for the benefit of plaintiff and his two children, they must find a verdict for defendant, unless the jury also believe from the evidence that in filing said telegram by said Jordan Ramey and George B. Pickens, with defendant for transmission to said John M. Morrison, said Ramey and Pickens were acting as agents of plaintiff.

Assignment 28, charge 14: Unless you are reasonably satisfied from the evidence in this case that said Ramey, Elliott, and Pickens were each successively the agent of plaintiff in filing said message with defendant for transmission, then your verdict must be for defendant.

Assignment 30, charge 16: The judgment must be for defendant in this cause, unless the jury are reasonably satisfied from the evidence that said Ramey and Pickens were the agents of plaintiff in filing said telegram with defendant for transmission, or unless they are reasonably satisfied from the evidence that said telegram was intended for the sole benefit of plaintiff.

Assignment 22, charge 8: If you believe from the evidence in this case that the telegram in question was intended for the benefit of plaintiff, and of his two children, then the jury must find for defendant, unless the jury are reasonably satisfied from the evidence that said agent Pickens was the agent of plaintiff in filing said message with defendant for transmission to said John M. Morrison.

Assignment 23, charge 9: Practically same as 8.

Assignment 26, charge 12: If you believe from the evidence in this case that plaintiff made a trip to Pell City after the death of his son, and that he there found out that the telegram in question had never been delivered to said John M. Morrison, and that thereafter, with knowledge of the facts that said telegram had not been delivered if the jury should find such to be the facts, plaintiff paid charges to defendant's agents at Moundville for the transmission of said telegram, then the jury must find the issue in favor of defendant.

Assignment 27, charge 13: If you are reasonably satisfied from the evidence in this case that plaintiff did not pay defendant or defendant's agent at Moundville any money as charges for the transmission of said telegram until after plaintiff had made a trip to Pell City, and had found out that the telegram had not been delivered, then such payment was voluntary on the part of plaintiff, and plaintiff cannot recover of defendant in this action any amount of money for mental anguish.

The telegram was as follows:

To John B. Morrison. Come at once, August now almost dead. Bring the children. Norman Morrison.

Forney Johnston and W.R.C. Cocke, both of Birmingham, Thomas E. Knight, of Greensboro, and Albert T. Benedict and Francis R. Stark, both of New York City, for appellant.

Smith & Morrow, of Birmingham, Edward de Graffenried, of Tuscaloosa, and Evins & Jack, of Greensboro, for appellee.

Where plaintiff instructed another to send a telegram for him, he clothed the other with authority to employ necessary subagents, and it was a question for the jury whether persons participating in sending the telegram were agents of the plaintiff.

EVANS J.

Appellee (plaintiff below) instituted his action to recover damages for failure to deliver a telegram sent to his brother-in-law from Moundville, in Hale county, to Pell City, in St. Clair county, advising that appellee's son was at the point of death and requesting sendee to bring appellee's children to Moundville. The action was ex contractu.

The complaint contained but one...