Western Union Telegraph Co. v. Garthright

• Decision Date: 06 June 1907
• Parties: WESTERN UNION TELEGRAPH CO. v. GARTHRIGHT.
• Court: Alabama Supreme Court

44 So. 212

151 Ala. 413

WESTERN UNION TELEGRAPH CO. v. GARTHRIGHT.

Supreme Court of Alabama

June 6, 1907

Appeal from Circuit Court, Autauga County; Samuel L. Brewer, Judge.

Action by Beulah Garthright against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for failure to deliver a telegram alleged to have been contracted to be delivered by defendant for payment through her agent, T. A. Shannon. The necessary allegation as to the business of the defendant was made. The telegram was as follows: "To J. A. Norton, c/o E. H. Norton, Alapaha Ga. Come at once. Jim very low. [ Signed] T. A Shannon." It is averred that, at the time of the filing of said message for transmission, plaintiff was a widow having one child, a baby, by the name of Jim, and that she resided with her father, J. A. Norton at Prattville, Ala that her father was on a visit to Alapaha, when her baby became seriously ill, and it was very necessary for her father to be there to assist her in caring for and nursing him, etc. It is alleged that the telegram was received at Alapaha, Ga., at 8:25 a. m., June 5, 1906, and was not delivered until the following day, the 6th day of June, 1906, at 9:35 a. m. It is alleged that the defendant negligently and carelessly broke the contract in failing to deliver the message within a reasonable time, and as a proximate consequence of the same the plaintiff suffered great mental anxiety, trouble, and annoyance, mental pain and distress, etc., together with the cost of the telegram. The second count is very similar to the first count. The demurrers interposed are that the counts fail to allege that the defendant made any contract with the plaintiff to transmit the message, because said counts show on their face that the contract for the transmission of said message was made with Shannon, and because the count fails to set up any facts showing any actual, substantial damages to plaintiff to which mental anguish may be superadded, and because said counts claim damages for mental anguish alone, disconnected from any damages to person, estate, or reputation.

Rushton & Coleman, for appellant.

Ballard & Thomas, for appellee.

ANDERSON J.

Both counts of the complaint seek a recovery for a breach of the contract for the transmission of the message, and the complaint was not subject to the ground of demurrer proceeding upon the theory of a misjoinder. The first count contains averments of a negligent failure to deliver the telegram, but this is merely descriptive of the mode in which the contract was broken. W. U. T. Co. v. Crumpton, 138 Ala. 632, 36 So. 517.

The first count, as amended, avers that the contract for the transmission...