Western Union Telegraph Co. v. Long

• Citation: 41 So. 965,148 Ala. 202
• Parties: WESTERN UNION TELEGRAPH CO. v. LONG.
• Decision Date: 08 May 1906
• Court: Supreme Court of Alabama

41 So. 965

148 Ala. 202

WESTERN UNION TELEGRAPH CO. v. LONG.

Supreme Court of Alabama

May 8, 1906

Appeal from Circuit Court, Dekalb County; J. A. Bilbro, Special Judge.

"To be officially reported."

Action by J. W. Long against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This was an action for failure to transmit and deliver the telegram set out in the opinion. The assignments of error were as follows: (1) The court erred in overruling demurrers to the sixth count of the complaint. (2) In overruling demurrers to the second count of the complaint. (3) In overruling demurrers to the eighth count. (4) In overruling the objection to the question propounded to the plaintiff on direct examination: "Now how long was it after you arrived at Collinsville before you got the body removed to your uncle's house?" (5) In overruling appellant's objection to the following question asked the plaintiff on his direct examination: "Was there any delay about the burial of your child?" (11) In refusing at the request of the defendant to give written charge 5. (12) In refusing to give written charge 6. (13) In refusing to give written charge 7. (14) In refusing to give written charge 8. (15) In refusing to give written charge 9. (17) In refusing to give written charge 11. (18) In refusing to give written charge 12. The counts on which the case was tried are in the following language: "Count 6. Plaintiff claims of the defendant the sum of $1,999.90 damages for that, at, to wit, 9 o'clock in the morning, and on, to wit, the 17th day of November, plaintiff delivered to defendant, which was engaged in the business of transmitting for hire by means of electricity from Birmingham to Collinsville, Ala., telegrams or telegraphic messages, at Birmingham, on a blank furnished by defendant a telegram addressed to Pleas Keener at Collinsville, Ala., paying for the transmission and delivery thereof, the sum of, to wit, 75 cents. Said defendant received said message and said compensation, agreeing thereby to transmit and deliver the said message to said Pleas Keener, and which said message was in words and figures except the printed matter thereon which was placed there by defendant, as follows: [Here follows message as set out in the opinion.] And the plaintiff avers that the defendant failed to transmit and deliver said telegram as it undertook to do, and that by reason of said failure, plaintiff was compelled to receive the body of his child from the carrier which brought it from Birmingham to Collinsville, and deliver it into the hands of strangers while he went in search of in the nighttime, and through the rain the means to convey said body to the house of his relative and friend, the said Pleas Keener; that he was compelled to postpone the burial of his child for a long time, to wit, one day; that he was deprived in the hour and time of his arrival at Collinsville with the remains of his dead child of the comfort, consolation, and assistance of his near relative and friend, suffering thereby great inconvenience and also great mental pain and anguish for all of which he sues. Count 7. Plaintiff adopts all of the sixth count down to and including the telegram, and adds thereto as follows: Plaintiff avers that defendant failed to deliver said telegram to the said Keener, whereby plaintiff was compelled to receive the body of his dead child, and deliver it into the hands of strangers, while he, in the nighttime, and through the rain, went in search of means to remove said body to the residence of his near kinsman, Pleas Keener, causing him to suffer great grief and mental pain and anguish, wherefore he sues. Count 8. Plaintiff adopts all of the sixth count down to and including the telegram, and adds thereto as follows: Plaintiff avers that one of the purposes in view in sending said telegram was to notify the said Pleas Keener, who was a near relative of his and his deceased child of the misfortune which has befallen him, and to secure at the time of his arrival in Collinsville with the body of his said child the comfort, consolation and assistance of said relative, and to secure the means of immediately removing said body to a place where it could be housed and cared for during the night; that said message advised said defendant of this purpose. Plaintiff further avers that the defendant wholly failed to deliver said telegram to said Keener whereby his purpose was thwarted. He was caused to arrive at Collinsville in the nighttime, and was deprived contrary of his expectations of the presence, comfort, consolation and assistance which would have been rendered, and extended to him by his relative, said Keener, thereby adding greatly to the mental pain, affliction, and anguish he was already suffering, hence this suit.

The defendant demurred to the above counts. (1) For that there is a misjoinder of action in said complaint in that plaintiff has joined an action ex contractu with actions ex delicto. (2) For that the seventh and eighth counts of said complaint are actions ex delicto, which are improperly joined with action ex contractu. And to the sixth, seventh, and eighth count, the defendant assigned separately and severally the following grounds of demurrer: (1) Said count seeks to recover damages for mental pain and anguish, and fails to state facts which would authorize the recovery of damages for such mental pain and anguish. (2) The damages claimed therein and thereby are too remote and speculative. (3) For that the pain or anguish which the plaintiff suffered was caused by the failure of Pleas Keener to meet him at the depot with a conveyance, and the failure of said Keener to so meet him was not the proximate consequence of the failure to deliver the telegram. (4) For that there can be no recovery for mental pain and anguish under said count. (5) It does not appear therefrom that had said telegram been delivered to said Pleas Keener, that he, the said Keener would have met plaintiff at said train with a conveyance. (6) For that the averments of said count are vague, indefinite, and uncertain. (7) For that it does not appear with sufficient certainty what relation the said Keener, and the said Green, and the said Long bore to plaintiff. (8) Said count avers but the conclusions of the pleader. (9) For that it does not appear therefrom that the injury complained of and the damage suffered by plaintiff was the proximate consequence of the negligence alleged. (10) For that it appears therefrom that the damages suffered by plaintiff were not the proximate consequence of the negligence complained of. These demurrers were overruled. The facts of the case are sufficiently set out in the opinion.

The defendant requested the following written charges which were refused: "(5) If you believe the evidence you cannot assess more than nominal damages in favor of plaintiff. (6) I charge you that the plaintiff in this case can recover only the amount paid by him for the transmission and delivery of the message. (7) I charge you that the plaintiff in this case is not entitled to recover damages for mental pain or anguish which may have been suffered by him. (8) If you believe the evidence you cannot assess any damages in plaintiff's favor on account of mental pain or anguish which you may believe from the evidence was suffered...