Western Union Telegraph Co. v. Crumpton

SHARPE, J. The complaint in this cause as originally filed consisted of two .counts, each declaring for a breach of a contract between the plaintiff and defendant for the transmission by the latter from Birmingham, Ala., to the addressee at Georgetown, Ky., of a telegraphic message in the following words: “Birmingham, Ala., 7-23-99. To Rev. W. B. Crumpton, Georgetown, Ky. Am on Queen & Crescent train. Wire me Mama’s condition. [Signed.] Wm. O. Crumpton.” Simultaneously with the commencement of the suit, plaintiff filed another complaint against the defendant, declaring for the breach of a contract- for the transmission by defendant of a telegraphic message from Montgomery, Ala., to the addressee at Georgetown, Ky., which message was as follows: “Montgomery, Ala., 7-22-99. To Rev. W. B. Crumpton, Georgetown, Ky. Am leaving for Georgetown to-night. [Signed.] Wm. C. Crumpton.” In each of the suits the alleged injury for which special damages were claimed were the same, viz., mental distress of plaintiff from his being denied opportunity of seeing the dead body, of his mother and of being present at her funeral. Defendant attempted to remove both cases to the Federal Court, but they were remanded to the State Court and the defendant pleaded in abatement of this suit, the commencement and pendency of the other suit. This plea was on plaintiff’s motion stricken out as coming too late. The striking out of this plea is here assigned as error, but no exception thereto is shown to have been taken and, therefore, that action cannot be reviewed. . ' [641] After the plea was sticken plaintiff took a non-suit in the other case, and brought the subject matter thereof into this suit by amending the complaint so as to add thereto tiro counts, each declaring upon a breach of the contract for sending the Montgomery message. The plea in abatement Avas then refiled; and the court, sitting by consent for the trial of the particular issue joined on the plea, without a jury, found on that issue in favor of the plaintiff. This finding was correct for the reason, if for no other, that the two suits as originally brought AArere each based upon a contract different from that involved in the other. The usual test of identity in causes of action is AAdiether proof of one Avill sustain the other, and by that test it is plain that notAvithstanding the apparent identity in the claim for damages, the alleged undertaking Avith regard to the Montgomery message forms a subject matter distinct from the alleged undertaking and breach respecting the Birmingham message. The propriety of allowing the amendment to. the complaint is not properly brought in question by the demurrer to the complaint as amended. The way appropriate to raise such a question Avould have been by objection and exception to the allOAvance of the amendment or by motion to strike. — Sheffield, etc. v. DeJarnette, 111 Ala. 248; Nashville, Chattanooga & St. L. Ry. v. Parker, 123 Ala. 683. No misjoinder results from the introduction by counts 3 mid 4 of a cause of action different from that contained in the original complaint. Code, § 3232. Viewing each count as a Avhole, the averments of negligence are seen to be merely descriptiA'e of the mode in Avliich the contract Avas broken. They do not have effect to join a case in tort Avith a case c.r contráctil.. — Manker v. Western Union Tel. Co. 137 Ala. 292; 34 So. Rep. 839. The evidence was Avithout conflict and established the following facts: .'Between 8:30 mid 9:30 in the evening of July 22, 1899, plaintiff, Avho Avas then in Montgomery, went to defendant’s office at that place and handed to its agent the message of that date above [642] set out and told, liim it was in reply to several he, the plaintiff, had received, announcing the serious illness of his mother, and asked to have it rushed through at once and paid the .charges demanded, amounting to fifty-one cents. The agent then received the message, and said he would send it immediately. At about 9:30 o’clock of the same evening, plaintiff started from Montgomery on the north bound train, by which he reached Birmingham about 12:30 o’clock the next morning, and at that time handed to defendant’s agent at its office in Birmingham the message above set out as of the date of July 23, 1899. Plaintiff then asked the agent to explain the difference between day and night messages. The agent replied: “We don’t deliver night messages until after 7 o’clock in the morning.” Plaintiff then told the agent he was on his way to his mother’s bedside, and- wanted to get the message through at once. The agent thereupon said “all right,” and accepted the message and fifty emits paid by the plaintiff for its transmission. After waiting about three hours in Birmingham and receiving no answer, plaintiff: started northward by railway for Georgetown, Ky., and on reaching Somerset, Ky., his train was met by a southbound train, bearing his father and the dead body of his mother; which was being carried to Alabama for burial. Both trains were stationary at Somerset at the same time and long enough for plaintiff to have bearded the southbound train for return to Alabama, but being ignorant of his mother’s death and of his father’s presence on that train, he proceeded to Georgetown, where after learning for the first time of the death, plaintiff took the next passenger train coming south, and was traveling to Marion, Ala., when he met his father returning from Marion after the interment. The death occurred at Georgetown at about sunset on the evening of July 22, 1899, and though plaintiff’s father resided within defendant’s free delivery limits at that place, and did not leave there until about 10:3Q of the next day, neither of the messages were delivered to him before the burial. July 23rd was Sunday. By defendant’s regulations its [643] office at Georgetown remained, closed from 8 o’clock on Saturday night until the next morning, and its Sunday office hours were from 9 to 10 o’clock a. m. and from 5 to 6 p. m. • The messages, respectively, were received at that office at 10:02 and 10:03 a. m. of the 23rd, and were immediately copied and started out for the sendee. They were both day messages and plaintiff ivas given no notice of defendant’s office1 hours at Georgetown. The transaction between the plaintiff and defendant’s agent at Montgomery as detailed in the foregoing statement involved an agreement,, implied if not express, for the prompt transmission of the first message, and the same is true of the transaction between the plaintiff and defendant’s agent- at Birmingham with regard to sending the second message. The evidence shows that such transmission could have been accomplished within the space of one hour, and it follows as a conclusion of law that the transmissions which occurred at 10:02 and 10 :03 on the morning of July 23rd were not a compliance with either of those agreements. Nothing appearing to the contrary, it is presumed that defendant’s agents who were intrusted with the receipt of messages, had authority to bind it by their agreements as to the time for sending them even to the extent of disregarding the regulations as to the hours of opening and closing the office at Georgetown. — Jovce on Electricity, § 812; Peck v. Wes. U. T. Co., (Iowa) 43 L. R. A. 214; Wes. U. T. Co. v. Bruner, (Texas) 19 S. W. Rep. 149. For the breach of each of the agreements referred to, plaintiff was entitled to. recover such damages as resulted therefrom directly, naturally and proximatelv, and the price paid by plaintiff as the consideration, for the g¿>-reements were of that class. Decisions of this court have established here the doctrine that special damages for mental anguish may be added to other damages made recoverable by the breach of contract to deliver a telegram relating to the sickness or death of one who bears such near relationship to the sender as that of a parent. — Western Union Tel. Co. v. Ayres, 131 Ala. 391; Western Union Tel. Co. v. Crocker, 135 Ala. 492; Western Union Tel. Co. v. Henderson, 89 Ala. 510; [644] Western Union Tel. Co. v. Cunningham, 99 Ala. 314; Western Union Tel. Co. v. Wilson, 93 Ala. 32; Western Union Tel. Co. v. McNair, 120 Ala. 99. The messages, each in connection with the information given the agents when they received them, respectively, were sufficient to put the defendant on notice that they were of such special importance and urgency as that their nondelivery might probably result in consequences distressful to the plaintiff. Such consequences are, therefore, deemed to have been within the contemplation of the parties at the making of the contracts, though the precise happenings which followed upon the breaches of those contracts may not have been foreseen. — Western Union Tel. Co. v. Henderson, supra; Joyce on Electricity. § 825. Under the evidence it was for the jury to determine whether the loss of opportunity and mental distress alleged to have been suffered by plaintiff, was the proximate result of the failure to make due delivery of either of the messages. The charge on which assignments of error are based are each inconsistent with views expressed above and were properly refused. The refusal of the motion for a new trial does not appear to have been excepted to, and, therefore, is not reviewable. Judgment affirmed.