Western Union Telegraph Co. v. Whitson

• Decision Date: 06 June 1906
• Citation: 145 Ala. 426,41 So. 405
• Parties: WESTERN UNION TELEGRAPH CO. v. WHITSON.
• Court: Alabama Supreme Court

41 So. 405

145 Ala. 426

WESTERN UNION TELEGRAPH CO. v. WHITSON.

Supreme Court of Alabama

June 6, 1906

Appeal from Tuscaloosa County Court; H. B. Foster, Judge.

"To be officially reported."

Action by W. H. Whitson against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action by appellee against appellant. The third count in the complaint was charged out at the request of the defendant. The first and second counts were in the following words: Count 1: "The plaintiff claims of the defendant the sum of $1,500 as damages for the breach of a contract made by plaintiff, through his agent, J. H. Willingham, of Berry, Ala., and the defendant on the 12th day of January 1905, by the terms of which the defendant undertook to transmit from Berry, Ala., to Northport, Ala., the following message: 'Jan. 12, 1905. To W. H. Whitson, Northport Ala. Your motherer died this morning. Will bury her tomorrow. J. H. Willingham.' And the plaintiff avers that at the time of making said contract the defendant was engaged in the business of transmitting and delivering telegraphic message for hire, and that he paid the defendant the charges for sending said message from Berry, Ala., and delivering the same at Northport, Ala., and plaintiff avers that said contract was broken by the defendant in this: That it negligently and carelessly failed to deliver at Northport Ala., said message to the plaintiff. And plaintiff avers that, had the message been delivered to him within a reasonable time, he could have reached the place where his mother was lying dead in time to have seen her before burial and in time to have been present at her burial; and plaintiff further avers that on account of the defendant's negligence and carelessness in not delivering said message plaintiff was prevented from being present at his mother's funeral and of again seeing her before her burial, on account of which plaintiff suffered great injury to his feelings and mental anguish, to the damage of the plaintiff in the sum of $1,500. Hence this suit." Count 2: "The plaintiff claims of the defendant the sum of $1,500 damages, for that on, to wit, the 12th day of January 1905, the plaintiff, through his agent, J. H. Willingham, of Berry, Ala., delivered to defendant's agent for transmission and delivery from Berry, Ala., to plaintiff at Northport, Ala., a message in words and figures substantially as follows: 'Jan. 12, 1905. To W. H. Whitson, Northport, Ala. Your mother died this morning. Will bury her tomorrow. J. H. Willingham.' And defendant contracted and undertook for a certain sum of money, which plaintiff's agent then and there paid to defendant, to deliver said message to plaintiff at Northport, Ala. The plaintiff avers that the defendant was engaged in the business of transmitting telegraphic messages for hire between said two places. And the plaintiff further avers that the defendant broke said contract in this: That it negligently and carelessly failed to deliver at Northport, Ala., said message to the plaintiff; that, had said message been delivered to the plaintiff within a reasonable time, he could have reached the place where his mother was lying dead in time to have seen her before burial and in time to have been present at her burial; and that by reason of defendant's negligent failure to deliver said message the plaintiff was prevented from being present at his mother's funeral and of seeing her before her burial, on account of which plaintiff suffered great injury to his feelings and mental anguish, to the damage of the plaintiff in the sum of $1,500. Hence this suit."

The defendant demurred to counts 1 and 2 on several grounds, and the demurrer was overruled. The only insistence made on appeal is that the court erred in overruling demurrer No. 1 to counts 1 and 2. This ground of demurrer is in the following language: "It is not alleged or shown that plaintiff lived, did business, or was to have been found within the free delivery limits of defendant's Northport office; not is it shown that plaintiff or his said alleged agent contracted with defendant for the delivery of said message beyond the free delivery limits of defendant's Northport office." The defendant offered to show by its operator at Northport that Willie Whitson was often sent by his father to mail letters at the depot in Northport, at which defendant's receiving office was located, and that this fact was know to the messenger of defendant's company. On objection by plaintiff, this evidence is excluded. The defendant's evidence further tended to show that the messenger to whom its operator...