Western Union Telegraph Co. v. North

• Decision Date: 15 January 1912
• Citation: 177 Ala. 319,58 So. 299
• Parties: WESTERN UNION TELEGRAPH CO. v. NORTH.
• Court: Alabama Supreme Court

58 So. 299

177 Ala. 319

WESTERN UNION TELEGRAPH CO. v. NORTH.

Supreme Court of Alabama

January 15, 1912

Rehearing Denied Feb. 15, 1912.

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Action by Mrs. G. P. North against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed conditionally.

McClellan J., partially dissenting.

George H. Fearons, Ray Rushton, and W. M. Williams, for appellant.

Hill Hill & Whiting, for appellee.

McCLELLAN J.

Action for damages for delay in delivery of the following telegraphic message, respecting the death of plaintiff's (appellee's) mother: "Mother is dead, holding body wire at once." The message was sent, by plaintiff's brother, from Freeland, Mich., on Saturday, August 7, 1909. It was received in Montgomery, its destination, on that date. As originally filed with the defendant, its address contained this, "903 North Decatur St." As received at Montgomery, its only street address was, "Decatur Street." It was delivered Monday, August 9, 1909. An element of the damages claimed was that plaintiff was prevented by the delay in the delivery of the message from attending the burial of her mother and from seeing her before her burial. The only errors assigned relate to the action of the court in overruling defendant's motion for a new trial.

The verdict assessed the damages at $2,000. One ground of the motion was that the amount was excessive. Before the motion was disposed of, plaintiff remitted the damages down to $1,500, whereupon the court gave effect to the remittitur and reduced the amount to that sum. Such a practice has the approval of this court. Montgomery Trac. Co. v Knabe, 158 Ala. 458, 468, 48 So. 501; Richardson v. B'ham Mfg. Co., 116 Ala. 381, 22 So. 478; Downs v. Bailey, 135 Ala. 329, 33 So. 151. No reason now appears to depart from it. It tends to put an end to litigation. From the practice no prejudice to a defendant could attend. He may always, as in this case, recast his motion so that the ruling of the trial court may be had upon the question whether, as reduced, the amount is excessive. If it be not so, obviously the defendant is not prejudiced.

In cases involving similar circumstances this court has declined to disturb verdicts assessing the damages at $1,500. W. U. Tel. Co. v. Seed, 115 Ala. 672, 22 So. 474; W. U. Tel. Co. v. Rowell, 166 Ala. 651, 51 So. 880. Like considerations lead the court to forbear in this instance.

It is argued at length, for appellant, that the verdict of the jury is against the law and the evidence.

Whatever may be the view prevailing elsewhere, this court is thoroughly committed to the doctrine that damages for mental suffering, when properly recoverable, are actual damages. W. U. Tel. Co. v. Haley, 143 Ala. 586, 591, 39 So. 386; W. U. Tel. Co. v. Adair, 115 Ala. 441, 22 So. 73; W. U. Tel. Co. v. McNair, 120 Ala. 99, 23 So. 801, and authorities therein cited; W. U. Tel. Co. v. McMorris, 158 Ala. 563, 48 So. 349, W. U. Tel. Co. v. Fuel,

165 Ala. 391, 51 So. 571, among others.

The relationship between the persons concerned in this instance afforded, under many adjudications here, the basis for the recovery of the damages for the deprivation alleged. So the latter branch of the inquiry is whether there was furnished the jury any evidence wherefrom the jury might conclude that the plaintiff suffered the mental anguish alleged in consequence of delay charged. There was evidence tending to show that, had the message been promptly delivered at the street address given in the message as filed, plaintiff would have gone to the bier of her mother; and, also, that in consequence of her not being afforded the opportunity to see...