Western Union Telegraph Co. v. Manker

• Decision Date: 20 April 1906
• Citation: 145 Ala. 418,41 So. 850
• Parties: WESTERN UNION TELEGRAPH CO. v. MANKER.
• Court: Alabama Supreme Court

41 So. 850

145 Ala. 418

WESTERN UNION TELEGRAPH CO. v. MANKER.

Supreme Court of Alabama

April 20, 1906

Rehearing Denied July 6, 1906.

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by Matie E. Manker against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action for damages resulting from a failure to deliver a telegram. The first count alleges that the defendant was a public telegraph company engaged in sending messages by electricity for hire, and that it received at its office in Kendallville, Ind., from Frank Lash, alleged to be the agent of plaintiff, a certain message, addressed to plaintiff at Birmingham, Ala., for which it received 51 cents, and for which it received and undertook to transmit and deliver said message to plaintiff, alleging a failure to do so for more than a week, and alleging the mental suffering and anguish resulting from the death of the father of plaintiff, about whose condition the message was, and alleging the actual damages at 51 cents. The second count was the same as the first, except that it declared that the defendant wantonly failed to deliver the message. The third count is the same as the first, except that it alleges that the defendant received said message and agreed to deliver it to plaintiff at Birmingham. The fourth count is the same as the third, with the exception that it alleges a wanton failure to deliver. The defendant moved to strike all the allegations in the complaint referring to mental anguish and suffering, upon the ground that the same are not and cannot be made the basis of an action. It also demurred to the complaint on the same grounds. Both the motion and demurrer were overruled. The defendant then interposed a plea of the general issue and a plea setting up that it transmitted the message promptly and used due diligence to deliver it to the sendee, but failed after due diligence to find her, and this fact was communicated to its agent at Kendallville, who communicated it to the sendee, and asked the sendee for a better address which was not furnished.

The court, at the request of the plaintiff, gave the following charges: Charge 1: "If the jury believe from the evidence that plaintiff, by her agent, Frank Lash, paid the defendant the charge for sending the telegram described in her complaint, and that the defendant negligently failed to deliver said telegram, the plaintiff would be entitled to recover the amount of said charges, and in addition thereto whatever damages, not exceeding in the aggregate the amount sued for, the jury may believe from the evidence she is entitled to for whatever mental suffering the plaintiff may have sustained by the defendant's said negligent failure to deliver said telegram." Charge 2: "The court charges the jury that if they believe from the evidence that plaintiff's brother, Frank Lash, in compliance with an agreement made with plaintiff, sent for her the message described in the complaint, and paid to the defendant the charges for sending same, this would be such a loss or damage as would entitle plaintiff to recover, if the jury further believe from the evidence that the defendant negligently failed to promptly deliver said message to plaintiff." Charge 3: "The court charges the jury that they have the right to infer mental suffering from all the circumstances in the case, and if from all these circumstances in evidence the jury believe from the evidence that plaintiff did so suffer and that said sufferings were the proximate result of the defendant's negligence in failing to promptly deliver the telegram described in the complaint, and that Frank Lash, as the agent of plaintiff, sent said telegram, the jury should consider said mental sufferings in determining the amount of damages the plaintiff would be entitled to." Charge 4 "If the jury believe from the evidence that plaintiff's brother, Frank Lash, as her agent and on her behalf and for her benefit, delivered to defendant at Kendallville, Ind., the telegram described in the complaint and paid the charges for transmitting same to plaintiff at Birmingham, Ala., and that defendant negligently failed to deliver said telegram to plaintiff, your verdict must be in favor of plaintiff." Charge 5: "The law allows the jury to determine from all the circumstances proven whether or not the plaintiff suffered mental anguish or pain from the failure to promptly deliver the telegraphic message described in the complaint, and if they believe that said mental anguish or pain was the proximate result of the negligence of the defendant in failing to deliver said message to plaintiff with reasonable promptness, the jury should compensate her in damages for said mental anguish or pain."

The defendant requested the following charges, which were refused: (1) Affirmative charge as to count 1. (3) Same as to count 2. (4) Same as to count 3. (5) Same as to count 4. (6) "The court charges the jury that they are not authorized to award more than nominal damages to the plaintiff under the first count, if they find that she is entitled to recover anything under that count." (7) Same charge as to the second count. (9) Same...