Western Union Telegraph Co. v. Appleton

• Decision Date: 07 November 1914
• Docket Number: 886
• Citation: 67 So. 412,190 Ala. 283
• Parties: WESTERN UNION TELEGRAPH CO. v. APPLETON.
• Court: Alabama Supreme Court

67 So. 412

190 Ala. 283

WESTERN UNION TELEGRAPH CO. v. APPLETON.

No. 886

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from City Court of Birmingham; J.H. Miller, Judge.

Action by Lucinda Appleton against the Western Union Telegraph Company for damages for delay in delivery of telegram. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals. Reversed and remanded, because of failure of plaintiff to file remittitur of damages as required.

George H. Fearons, of New York City, and Forney Johnston and W.R.C Cocke, both of Birmingham, for appellant.

Harsh &amp Fitts, of Birmingham, for appellee.

DE GRAFFENRIED, J.

The count upon which this case was tried is in tort. It is well settled that in this form of action for damages for delay in the delivery, or for the nondelivery, or for negligence in the transmission or delivery, of a telegram, the sendee cannot recover for mental pain and anguish, unless there is a right of recovery aside from such injuries. Western Union Telegraph Co. v. Blocker, 138 Ala. 484, 35 So. 468; Western Union Telegraph Co. v. Jackson, 163 Ala. 9 50 So. 316; Western Union Telegraph Co. v. Brown, 6 Ala.App. 339, 59 So. 329.

The complaint in this case shows that the telegram in question was sent by the plaintiff's agent to her, and we think shows with sufficient clearness the loss to her of the 40 cents which was paid to the defendant as its toll for transmitting the telegram. The complaint was not subject to the demurrer which was interposed to it by the defendant. Authorities supra.

2. The evidence in this case we think conclusively establishes: That the plaintiff's agent delivered to a telegraph agent of the defendant, at Athens, Ga., a telegram in the following words: "Come at once. Mother is dead. Answer when coming." That the telegram was properly addressed to the plaintiff at New Castle, Ala. That the agent of the plaintiff paid the defendant 40 cents for transmitting and delivering the telegram, and that New Castle was the only address of the plaintiff. In other words, we think that there was no evidence that the address of the telegram to the plaintiff was an insufficient address. We also think that there was evidence from which the jury had the right to infer that the plaintiff, by reason of the unnecessary delay of the defendant in delivering the telegram to her, was denied the privilege of attending her mother's funeral, and that if the telegram had been delivered to her with reasonable dispatch she could and would have been present at her mother's funeral. Under the evidence in this case, if it was believed by the jury, the plaintiff was entitled to recover damages for such mental pain and anguish as was suffered by her because of her failure to be present at her mother's funeral. Indeed, it seems to us that all of the questions which are presented to us by appellant have been determined adversely to it in the following cases: Western Union Tel. Co. v. Jackson, supra; Western Union Tel. Co. v Blocker, supra: Western Union Tel. Co. v. Brown, supra; Western Union Telegraph Co. v. Anniston Cordage Co., 6 Ala.App. 351, 59 So. 757; Western Union Telegraph Co. v. Boteler, 62 So. 822; Western Union Telegraph Co. v. Wright, 169 Ala. 107, 53 So. 95.

3. When the plaintiff concluded her testimony, the defendant moved the court to exclude all of the evidence, upon the ground that the plaintiff had failed to make out her case. The plaintiff had introduced relevant evidence tending to establish at least some--if not all--of the material allegations of her complaint. This being true, the trial court will not be put in error for refusing this motion of the defendant. McCray v. Sharpe (present term) 66 So. 441. If the defendant had, when the...