Western Union Telegraph Co. v. Westmoreland

• Decision Date: 11 June 1907
• Citation: Western Union Telegraph Co. v. Westmoreland, 151 Ala. 319, 44 So. 382 (Ala. 1907)
• Parties: WESTERN UNION TELEGRAPH CO. v. WESTMORELAND.
• Court: Alabama Supreme Court

44 So. 382

151 Ala. 319

WESTERN UNION TELEGRAPH CO. v. WESTMORELAND.

Supreme Court of Alabama

June 11, 1907

Appeal from Circuit Court, Limestone County; D. W. Speake, Judge.

Action by Pattie Westmoreland against the Western Union Telegraph Company.From a judgment for plaintiff, defendant appeals.Reversed and remanded.

E. K Campbeel and W. T. Sanders, for appellant.

Thos C. McClellan, for appellee.

TYSON C.J.

This action is one in form ex delicto for damages arising from delay in the delivery of a telegraphic message.The plaintiff, a young lady, delivered a message to defendant, at the Union Depot in Montgomery in the evening of the 28th of November, 1903, addressed to F. G. Westmoreland, Athens Ala., containing the words, "Meet me to-night," and signed by the plaintiff, for which she paid the charges of 30 cents.The message was routed by way of Atlanta, the only line open, and from there, by some cause or other wholly undisclosed, it was sent to Athens, Ga., where unavailing efforts were made to find the sendee, which being reported back, finally the message found its way to Athens, Ala.; but it was not delivered until the evening of the next day, the 29th of November.The plaintiff, it appears, went on the night train of the 28th of November from Montgomery to Athens, Ala., arriving about 1 o'clock a. m., where she expected to be met by her brother, the sendee of the message who had an office near the depot, and who she expected would escort her home, some 5 1/2 blocks away.On account of the message not being delivered, the brother did not meet the plaintiff, and she was thus deprived of his company from the depot.But it does not appear by any testimony that the plaintiff was not duly escorted home, or that she sustained any actual damages whatever of any kind by the misfortune of the message not arriving before the train on which she had taken passage.It was not shown that the delay in the delivery of the message arose from any willful or malicious act whatever, nor was there any proof whatever that any mental distress, anxiety, or pain was caused to the plaintiff by the nondelivery of the message.

The plaintiff laid her damages at $750, the items being the consideration "of, to wit, 50 cents" paid for the service, and the balance in the way of damages for mental distress, anxiety, and pain, and for punitive or exemplary damages.The points involved in the appeal, leaving out of consideration the details of the trial by which they were developed, are two: First, whether or not we have advanced to the point of making "mental distress damages" an item of allowance in cases of this character, even when they are duly proved; second, whether punitive damages are assessable for the mere failure to deliver punctually a social message of the character here shown and under the circumstances of this case.

The claim here, though masked under the form of an ex delicto action, is essentially an action on a contract for the failure to perform express or implied promises, or to perform duties arising directly out of contract and founded on the consideration passing between the parties.There is not an element of actual tort involved.In such cases assumpsit is a concurrent remedy with case.1 Chit. on Plead.134, 135.And it is often a question of difficulty to determine whether an action from its mere nature or in its form is in case or assumpsit.Wilkinson v. Moseley,18 Ala. 288;Whilden v. M. & P. N. Bank,64 Ala. 1, 38 Am. Rep. 1.Manifestly the measure of damages in such cases cannot be altered in any substantial respect by the mere adoption of one form of action rather than another for the redress of the same grievance.We must therefore consider this case as one seeking compensation for the violation of the contract to deliver promptly the telegram in question to the sendee.

We are here to administer, and not to make the law.There are many grievances and elements of damage which may, and frequently do, arise from the breach of contracts of which the law takes no cognizance, and this for substantial reasons.They may not be the natural consequence of the breach, and thus beyond the contemplation and agreement of the parties, or they may be so elusive, intangible, and so easily simulated for the occasion, or so dependent on personal idiosyncrasies, as to make it dangerous and corruptive for them to be entertained as matters to be estimated as elements of compensatory or legal damages.A merchant in trade may be forced into bankruptcy and an established business ruined by the failure of a debtor to pay promptly a single debt, occasioning, besides a direct pecuniary loss, intense mental anguish and distress, resulting frequently, it is well known, in lunacy or suicide.But the law only allows interest as damages against the debtor for delayed payment.The courts have for years been defining and administering the law of damages for the violation of contracts, including all duties arising out of them, whether from implication or from express promises, so that the precedents discover all the rules upon the subject.Every one is entitled, of course, on the breach of a contract, to full compensatory damages as ordinarily understood and allowed.

In this casethe plaintiff on the proof would clearly be entitled to recover actual damages to the extent of the cost of the telegram.Western Union Tel Co. v. Krichbaum,132 Ala. 539, 31 So. 607.But she claimed and was allowed damages for mental pain, anxiety, and distress.Such damages notwithstanding their elusive character, are actual; but they are...