Western Union Telegraph Co. v. Russell

WALKER, P. J. The assignments of error based Upon the action of the trial court in- overruling the demurrers to the several counts of the complaint are sought to be sustained by the suggestion that the allegations as to the delivery of the telegram to “the defendant, or its agent,” do not show a delivery of it to the defendant. There is no merit in this suggestion. The averments of each of the counts sufficiently show that the defendant’s agent at Bessemer, in receiving the telegram for transmission, and in what was done or failed to be done in reference to it, was acting for and in behalf of the defendant, and within the scope of such an agency. The defendant could not have been prejudiced by the sustaining of the demurrer to- its fourth plea. That plea was in effect a denial that there Avas any such telephone call or connection at the defendant’s terminal office to Avhich the message was to be transmitted as Avas indicated by the telephone number Avhich Aims made a part of the address of the person to whom the message was sent. Evidence of that fact would negative a conclusion that the defendant Avas negligent in failing to reach the person addressed by the telephone in the mode indicated in — 489 — the address, and was available to the defendant under its plea of the general issue. The claim of the plaintiff (the appellee here) was based upon the alleged breach by the defendant of the obligation assumed by it promptly to transmit and deliver the following message: “Bessemer, Alabama, Feby. 16, 1910. Mrs. W. J. Hart, Phone 191-2 rings, R. F. D. No. 1 Meigs,- Georgia. Will be in Columbus, Georgia, tomorrow, 10- o’clock, with remains of Mrs. E. L. Russell. Answer at once. (Signed) W. R. Russell.” It is contended in behalf of the appellant that there was an absence of evidence tending to show that Mrs. Hart, the person addressed, could or would have left for Columbus, Ga., any earlier than she did, if the message had been delivered with, due diligence after the special charge was paid to secure its delivery at her place of residence, which was several miles out in the country from Meigs, Ga.; and in this connection reference is made to what was said in the case of Western Union Telegraph Co. v. McMorris, 158 Ala. 563, 48 South. 349, 132 Am. St. Rep. 46, as to the necessity of the plaintiff in such a case adducing evidence to support an inference that- his object in sending the message would have been accomplished by the exercise of due diligence in its transmission and delivery. The message in that case announced the death of one Caldwell, stated when -his remains would reach the place to which the message was sent, and contained a request that the grave be preparad. The evidence showed that the persons addressed were not related to the sender of the message, or to the person whose death was announced, and there was no effort to prove that they were in the town to which the message was sent during the time within which the plaintiff was claiming that they should have received it, or that they would have complied with the request contained in the message, if it had been de — 490 — livered to them within that time. In the case at har, it cannot fairly be said that there was a similar lack of evidence as to the feature of the case which is referred to. Here the person addressed was the sister of the sender of the message and the daughter of the person of the arrival of whose remains at Columbus on the next morning the message gave notice. There was evidence tending to show that she left for Columbus by the first train going in that direction after she received the message; and that, if it had been forwarded to her from Meigs with due diligence after the defendant was paid the amount it charged for this service, she could have taken a train by which she would have been enabled to get to Columbus during the morning of the day on which the remains of her mother reached there. It is not' difficult to discover in such a state of facts substantial support for an inference that the prompt transmission and delivery of the message would have resulted in the person addressed being with her brother, the sender of the message, in Columbus on the morning of the arrival at that place of the remains of their deceased mother. We cannot concur in the view that there was a fatal deficiency in the evidence in the respect suggested. Mention, also, is made of the absence of direct evidence of the defendant’s being informed of any relationship between the person addressed and either the sender of the message or the person whose death was referred to. The words of the message showed plainly enough that the subject of it was a matter of serious concern to both parties to the communication. The surnames mentioned indicate that the sender and the deceased person referred to were kinspeople; and the message being addressed to a married woman, the terms of it might readily suggest that she also was a member of the same family. The sender’s willingness to pay a charge to secure — 491 — prompt delivery by a special messenger, if the person addressed could not be reached by telephone from the defendant’s ter urinal office, indicated his anxiety to avoid delay. At any rate, the message was such a communication as in itself, especially in view of the circumstances attending the sending of it, carried notice to the defendant that a failure promptly to transmit and deliver it would propably result in serious disappointment and mental distress on the part of the sender.—Western Union Telegraph Co. v. Benson, 159 Ala. 254, 48 South. 712; Western Union Telegraph Co. v. Bennett, 3 Ala. App. 275, 57 South. 87. Evidence offered by the plaintiff tended to prove that the remains of his mother reached Columbus on the morning train after his message to Mrs. Hart was sent, and that he had a hearse and several carriages at the depot; the plan being to take the remains directly to the cemetery. The receipt of a telephone message, announcing that Mrs. Hart was coming, occasioned a postponement of the funeral to the next day. Over objections duly interposed by the defendant, the plaintiff was permitted to prove the additional cost to him of the hearse and carriages consequent upon the postponement of the funeral under the circumstances stated. The court charged the jury to the effect that under the evidence the defendant might be held liable for that item of expense incurred by the plaintiff, and refused a charge requested by the defendant, which asserted that the amount of such expenses incurred by the plaintiff should not be considered as a part of the recoverable damages in the case. We are of opinion that the court was in error in these rulings. The action was for the recovery of damages sustained by the plaintiff in consequence of the alleged breach by the defendant of the obligation assumed by it promptly to transmit and deliver the message. The — 492 — fact that the postponement of the funeral was the occasion of subjecting the plaintiff to an additional expenditure for vehicles, to which he would not have been subjected but for such postponement, was owing to the circumstances that he was the person by whom such expenses were to be borne. Such additional expenses, so incurred by the plaintiff, conceding that, under the evidence, they could be regarded as having proximately resulted from a failure of the defendant to have the message promptly delivered, clearly are to be classified as special damages, or such as could not reasonably have been expected by the parties to result from the breach of obligation complained of but for the existence of an exceptional state of facts attending the making of the contract. The rule is settled that such special damages resulting from a breach of a contract are not recoverable, unless the exceptional state of facts which might give rise to them in the event of such breach was, at the time the contract was entered into1, in some way brought to the knowledge or notice of the party sought to be charged. This rule has been applied several times in this state in cases bearing some resemblances, in the facts and principals involved, to the present one.—Daugherty v. American Union Telegraph Co., 75 Ala. 168, 51 Am. Rep. 435; American Union Telegraph Co. v. Daugherty, 89 Ala. 196, 7 South. 660; Western Union Telegraph Co. v. Way. 83 Ala. 543, 4 South. 844;Western Union Telegraph Co. v. Reed, 3 Ala. App. 253, 57 South. 83. ' There was no evidence tending to show that the defendant was notified or informed in any way that the sender of the message would be responsible for or would have to bear the expenses of the funeral of the deceased person referred to. There are nothing in the terms of the message to suggest that a postponement of the funeral' might entail upon the sender an additional outlay for — 493 — a .hearse and carriages. The message suggested that the sender and the deceased were members of the same family, but did not indicate that the former was a son of the latter, or that he happened to be the member of the family who would pay the expenses of the funeral. In short, there was nothing in the message itself, or in the circumstances attending the defendant’s'acceptance of it for transmission and delivery, to indicate or suggest to the defendant that a breach by it of the obligation so assumed might result in entailing upon the plaintiff such special damages as he claimed to have sustained by being subjected to an additional and unlooked for outlay for a hearse and carriages. In this state of the evidence, that outlay by the plaintiff cannot furnish support for an award of damages to him. Other questions presented for review need not be passed on, as they may not arise in another trial.. Reversed and remanded.