Western Union Telegraph Co. v. Cleveland

• Decision Date: 12 May 1910
• Citation: Western Union Telegraph Co. v. Cleveland, 169 Ala. 131, 53 So. 80 (Ala. 1910)
• Parties: WESTERN UNION TELEGRAPH CO. v. CLEVELAND.
• Court: Alabama Supreme Court

53 So. 80

169 Ala. 131

WESTERN UNION TELEGRAPH CO. v. CLEVELAND.

Supreme Court of Alabama

May 12, 1910

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by J. B. Cleveland against the Western Union Telegraph Company for failure to deliver a message. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McClellan and Mayfield, JJ., dissenting.

The allegation as to agency is as follows: "Plaintiff claims of the defendant corporation $1,999 damages for the breach of the contract, in that plaintiff, through his agent, W. J Cleveland, heretofore, to wit, on or about the 29th day of December, 1907, at Altoona, Ala., in the county of Etowah employed for a reward the defendant," etc., "to transport from Altoona, Ala., to Anniston, Ala., a message to plaintiff as follows: 'Altoona, Dec. 29, 1907. To J. B Cleveland, with Forbes Piano Co., Anniston, Ala., Come at once; mother is very low. W. J. Cleveland.' " The same allegation is made in the second count. The third count alleges, further, that plaintiff's mother was in feeble health at Altoona, and that on account of this, and about a month before, he arranged with his brother, near whom his mother lived in Altoona, to telegraph him at Anniston in the event his mother grew worse, and in consequence of this arrangement his brother did send him the message heretofore set out, or rather delivered it to the telegraph company and paid the toll.

The following charges were refused to the defendant: (4) "The court charges the jury that if they find from the evidence that the contract made between the parties was to deliver a message to plaintiff in care of Forbes Piano Company, at Anniston, Ala., and that Forbes Piano Company was a business concern which did not keep open its offices on Sunday, and if the message was sent on Sunday, then a delivery to Forbes Piano Company on Monday morning at 8:30 o'clock would be a reasonable time in which to deliver said message." (7) "The court charges the jury that if they find from the evidence that defendant's office hours on Sundays at Anniston were from 4 to 6 o'clock in the afternoon, and that such hours were reasonable, then no duty rests on the defendant to undertake the transmission of said message until 4 o'clock p. m. of that day."

The following charge was given at the request of the plaintiff (26) "The court charges the jury that it was the duty of the telegraph company to send off the message from Altoona within a reasonable time, and if the jury are reasonably satisfied from the evidence that the company failed to send off the message from Altoona within a reasonable time, then the company is liable in this case, and the plaintiff is entitled to recover such damages as he proximately sustained thereby in mental pain and suffering, not exceeding the amount claimed in the complaint, provided the jury are reasonably satisfied from the evidence that W. J. Cleveland was his brother's agent to send the telegram in this case."

There was motion for a new trial, based upon several grounds, one of which was the excessiveness of the verdict. The verdict was for $500.

Goodhue & Blackwood, for appellant.

M. C. Sivley and Dortch, Martin & Allen, for appellee.

SAYRE J.

Appellee sued in contract for failure to deliver promptly a message informing him of the fatal illness of his mother. The sender of the message was plaintiff's brother. The court is of opinion that the complaint, when considered in all such of its parts as affect the question of the sender's agency for the sendee, sufficiently showed the relation of principal and agent between them in respect to the making of the contract with the defendant for the transmission and delivery of the telegram.

Special damages were claimed and recovered for mental anguish arising out of plaintiff's failure to see his mother during her last conscious hours, consequent upon the delay in delivering the message. The right to recover such damages in such cases has been settled in this court. W. U. Tel. Co. v Krichbaum, 132 Ala. 535, 31 So. 607; W. U. Tel. Co. v. Rowell, 153 Ala. 295, 45 So. 73. Plaintiff was allowed, over the objection and exception of the defendant, to testify that he had suffered mental pain and anguish on account of not reaching his mother's bedside during her conscious hours. The main controversy between the parties to this appeal turns about this point. The cases are cited, and we will consider them as briefly as may be. In W. U. Tel. Co. v. Heathcoat, 149 Ala. 623, 43 So. 117, the plaintiff was permitted to testify that she "suffered mental sorrow, distress and regret on account of not seeing my (her) brother before his death." The objection taken in the trial court was that the witness was undertaking to decide what it was for the jury to determine, and, further, that the testimony was immaterial, irrelevant, and incompetent. This court said on appeal: "It was competent for the plaintiff to testify that she had suffered mental pain and anguish. At least, the objections to the question calling for such evidence are not tenable"--citing Eckles v. Bates, 26 Ala. 655, and Birmingham Ry. Co. v. Hale, 90 Ala. 8, 8 So. 142, 24 Am. St. Rep. 748. In the first of the cases there cited it had been held that the declarations of a slave, incompetent to testify against a white person, relative to the symptoms and nature of the disease under which he labored at the time, were admissible as original evidence as being of the res gestæ of his sickness, as well as upon the necessity of the case; the soundness of the slave being the issue in controversy. In the second of those cases the plaintiff, to show the extent of her injury, was permitted to introduce the testimony of her physician that when he saw her after the injury she was complaining of pain. In W. U. Tel. Co. v. Northcutt, 158 Ala. 539, 48 So. 553, a case which went to the conference of the whole court, including three of the justices who had participated in the decision of Heathcoat's Case, that case being cited and noticed by the court, though in another connection, the question here involved was ruled to the contrary on the authority of City National Bank v. Jeffries, 73 Ala. 183. In the recent case of Mattingly v. Houston, 52 So. 78, Bank v. Jeffries was followed. In W. U. Tel. Co. v. Benson, 159 Ala. 254, 48 So. 712, on the authority of Heathcoat's Case, supra, and some cases decided by the Supreme Court of North Carolina, it was ruled that the plaintiff might testify that he would have been present at the funeral of his relative if he had received the telegram of notification. There are scores of cases in this state holding to the contrary of the Heathcoat and Benson Cases. We have consulted the following: Sledge v. Scott, 56 Ala. 207; Sternau v. Marx, 58 Ala. 608; Mobile Life Ins. Co. v. Walker, 58 Ala. 290; Herring v. Skaggs, 62 Ala. 202, 34 Am. Rep. 4; Wheless v. Rhodes, 70 Ala. 420; Burns v. Campbell, 71 Ala. 291; Baker v. Trotter, 73 Ala. 281; McCormick v. Joseph, 77 Ala. 236; Ala. Fertilizer Co. v. Reynolds, 79 Ala. 497; Ball v. Farley, 81 Ala. 288, 1 So. 253; Burks v. Bragg, 89 Ala. 204, 7 So. 156; E. T. V. & G. R. R. Co. v. Davis, 91 Ala. 621, 8 So. 349; Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500; Burke v. State, 71 Ala. 382; Wilson v. State, 73 Ala. 527; Johnson v. State, 102 Ala. 1, 16 So. 99; Dent v. State, 105 Ala. 14, 17 So. 94; Holmes v. State, 136 Ala. 80, 34 So. 180. Consistently, it was said, with the rule of the foregoing cases, it was held in Linnehan v. State, 120 Ala. 293, 25 So. 6, that a party might, upon cross-examination, be required to testify as to his motives, intentions, or mental state, where those facts are relevant to issues involved. That rule was also stated in the early case of Peake v. Stout, 8 Ala. 647. It may be that, in principle, both these rules are illogical survivals of the common-law rule of disqualification for interest, and certainly they are not within any exception of the statute abrogating the common-law rule on the subject. It is conceded, also, that the great weight of authority in other states is to the contrary. But not every syllogism serves the ends of justice, though the law is a reasonable science. Our own rule has been approved by a long line of judges as being the better adapted to the ascertainment of the truth of human transactions. No failures of justice have been observed to result from it, and this court as at present constituted, upon consultation and consideration of the Heathcoat and Benson Cases, along with the rest, is disposed to adhere to the rule which has obtained in this state from the beginning. We have considered together the questions raised by the conflict between the Heathcoat and Benson Cases, on one hand, and those numerous cases referred to, on the other. They are one question. In Bank v. Jeffries the rule for the exclusion of statements of mental conditions was taken as beyond dispute as the citation of authority shows. The peculiar feature of that case is to be found in its answer to the proposition that, since plaintiff suffered to an extraordinary degree, he ought to have been permitted to state the peculiar phases of his suffering, as that he was much distressed and harassed and that he was almost crazy. This was denied because for wrongs identical in nature and degree the man of delicate organism and acute sensibilities is entitled to no greater damages than one of a more stoical nature. We think juries may be relied on to draw proper inferences from facts and circumstances capable of proof...