Western Union Telegraph Co. v. Westmoreland

ANDERSON, J. Counts 6 -and 7 made out a case for recoverable damages. They show a loss to the estate1 bf the plaintiff of the toll paid for the transmission of the message, and which said sum is recoverable as actual damage, whether it be in tort or contract.—Western Union Tel. Co. v. Krichbaum, 145 Ala. 409, 41 South. 16. Where the complaint makes out a a good cause of action for the recovery of any damage at all, but combines in addition thereto a claim for nonrecover able damages, the proper way to rid it of the claim is not by demurrer, but by motion to strike, objection to the evidence, or special instruction to the jury.—Kennon Bros. v. W. U. Tel. Co., 92 Ala. 399, 9 So. Rep. 200; Daugherty v. A. N. T. Co., 75 Ala. 168, 51 Am. Rep. 435. The demurrers insisted upon by the appellant related only to the claim for punitive damages, and were properly overruled. The trial court committeed no error in overruling defendant’s motion to exclude testimony of plaintiff “that the agent or servant was paid in advance for the transmission and delivery of the above message.” The only two grounds of objection assigned are that the evidence was responsive to a leading question. Whether it was, [658] or not, it was within the discretion of the trial court to permit leading questions. For the same reason, assignment of error No. 4 is without merit. There was no error in permitting plaintiff to testify “that it was understood between Dr. Westmoreland and herself that when she left Selma she would come to his home, and that she would let him know in advance when she would leave Selma.” Of course, parties cannot testify to uncommunicated motives or reasons; but the evidence does not state an intention as urged in the grounds of objection. It simply sets out an agreement between Dr. Westmoreland and the plaintiff. We think plaintiff had the clear right to show that she was not met at the station by the sendee, and that it was a very material factor in the case. The trial court did not err in overruling the motion to exclude plaintiff’s evidence that she had paid for the transmission of the message. The only ground assigned is that it “appeared from her answer to the second interrogatory that her knowledge of the payment was hearsay.” She testified that the defendant’s agent accepted the charge for the message, and does not say who paid the charge, or that any one else told her the charges were paid. There was no error in permitting the introduction of the message delivered to the sendee. This action is not for a failure to send, but for a failure or delay in the delivery, and the message delivered was properly admitted.—Collins v. Western Union Co., 145 Ala. 412, 41 South. 160. The judgment of the circuit court is affirmed. Tyson, C. J., and Dowdbul and Simpson, JJ., concur.