Western Union Telegraph Co. v. Northcutt

SIMPSON, J. This action was brought by the appellee for damages for delay in delivering a telegram. The action is on the contract, and alleges that plaintiff’s husband was killed accidently; that her brother-in-law (Northcutt), as her agent, sent from Nauvoo, Alá., to her father (Van Horn) at Dora, Ala., a telegram in these words ¡“Harris killed in mines. Notify Jack at once at Empire. [Signed] A. D. Northcutt.” “Harris” was plaintiff’s husband, and “Jack” was a brother of his. There is some conflict in the evidence as to the agency of Northcutt in sending the message; but, according to the plaintiff’s statement, she requested him to send the telegram to her father, and added the request to notify his brother. Plaintiff claims that, by reason of the delay in the delivery, her father could not and did not reach Nauvoo until after her husband was buried, so that her principal claim for damages is for mental anguish for the day during which the arrangements were being made and the funeral was conducted, on account of being deprived of the consolation of having her father with her. Upon the general subject of recovery for mental anguish in such cases, the authorities in other states are in hopeless conflict; but our own court has carefully gone into the matter and has arrived at certain definite conclusions Avhich it may be well to staté in the outset, for it — 557 — is not deemed wise, at this day, to go behind onr decisions and open np this wide field of controversy for a new alignment of principles. First. An undisclosed principal may sue on a contract made by an agent. — W. U. Tel. Co. v. Millsap, 135 Ala. 415, 33 South. 160, and cases cited; Manker v. W. U. Tel. Co., 137 Ala. 292, 34 South. 839; Western U. Tel. Co. v. Manker, 145 Ala. 418, 41 South. 850. Second. Where there is a right of recovery of anything else on the contract, a recovery may be had in addition for mental anguish. — W. U. Tel. Co. v. Krichbaum, 132 Ala. 535, 31 South. 607; W. U. Tel. Co. v. Henderson, 89 Ala. 510, 518, 519, 7 South. 419, 19 Am. St. Rep. 148. Third. While there has been some criticism of the rule laid down in the leading case of Hadley v. Baxendale, 9 Exch. 241, to wit, that the damages for the breach of a contract “should be such as may fairly and reasonably be considered either arising naturally — i. e., according to the usual course of things — from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it,” yet that criticism was only verbal, to the extent that it would be more accurate to say that any special facts which magnify the transaction and entitle the party to special damages should be brought within the contemplation of the parties. — Daughtery v. Am. Union Tel. Co., 75 Ala. 168, 176, 177, 51 Am. Rep. 435. This and other cases adhere to the rule in said leading case, but hold that, by reason of the peculiar nature of the telegraph company and the duties it undertakes to the public, the very fact of a communication being sent by telegraph gives notice that expedition is the main object in view; so that it is not necessary to bring to its — 558 — attention the circumstances which call for sending the message without delay, or even to conch the message in language which may be understood. — W. U. Tel. Co. v. Way, 83 Ala. 542, 557, 558, 4 South. 844. It must be acknowledged that this element of damage is very vague and uncertain; that it is very difficult, if not impossible, for a jury to ascertain how much mental anguish a person endures, and to translate it into dollars and cents; and also that, if this principle should be applied to contracts generally, it would be very far-reaching, and possibly ruinous to many commercial transactions. Consequently our court has said that it is to be allowed only in case of messages between persons occupying close degrees of relationship, relating to exceptional events such as sickness or death, and that “to extend as a natural result the allowance on other occasions ‘would * * * tend to promote and encourage a species of litigation more or less speculative in its nature, and unjust and oppressive in its results.’ ” — W. U. Tel. Co. v. Westmoreland, 151 Ala. 319, 44 South. 382, 383; W. U. Tel. Co. v. Ayers, 131 Ala. 391, 394, 31 South. 78, 90 Am. St. Rep. 92. It is contended by the appellant that, according to the overwhelming weight of authority, no recovery can be had for mental suffering where the connection of the plaintiff with the message is not brought home to the telegraph company. The cases referred to in appellant’s brief clo not seem to rest upon any peculiarity in regard to mental suffering as an element of damage, but rather upon the general principle, held by some courts, in construing the Hadley-Baxendale Case, which we have seen does not obtain in this state in cases against telegraph companies, to wit, that the company is not liable unless informed of the circumstances which would cause the loss or suffering. Thus the principal case relied on — 559 — (Helms v. W. U. Tel. Co., 143 N. C. 386, 55 S. E. 831, 8 L. R. A. [N. S.] 549, 118 Am. St. Rep. 811) argues upon the general principle, while the case of Primrose v. W. U. Tel. Co., 154 U. S. 1, 14 Sup. Ct, 1098, 38 L. Ed. 883, involved a cipher message about a commercial transaction. The case of W. U. Tel. Co. v. Luck, 91 Tex. 178, 41 S. W. 469, 66 Am. St. Rep. 869, and Same v. Kirkpatrick, 76 Tex. 217, 13 S. W. 70, 18 Am. St. Rep. 37, and others which it is unnecessary to cite, rest upon the same general principle. For these reasons it is the opinion of the writer that, without overruling or modifying our previous decisions, this contention cannot be sustained; but the majority of the court (consisting of Tyson, C. J., and Dowdell, Denson, and Anderson, JJ.) hold that, the plaintiff’s relation to the contract not having been disclosed to the telegraph company, and it not appearing in the telegram, she is not entitled to recover for mental pain and anguish, and in support of that proposition they cite Helms v. W. U. Tel. Co., 143 N. C. 386, 55 S. E. 831, 8 L. R. A. (N. S.) 249, 118 Am. St. Rep. 811, and note; Proteet v. W. U. Tel. Co., 74 S. C. 492, 55 S. E. 113; W. U. Tel. Co. v. Kirkpatrick, 76 Tex. 217, 13 S. W. 70, 18 Am. Rep. 37; Squire v. W. U. Tel. Co., 98 Mass. 237, 93 Am. Dec. 157; W. U. Tel. Co. v. Procter, 6 Tex. Civ. App. 300, 25 S. W 813; Railroad Co. v. Seals (Tex. Civ. App.) 41 S. W. 841; Elliott v. Telegraph Co. 75 Tex. 18, 12 S. W. 954, 16 Am. St. Rep. 872; W. U. Tel. Co. v. Brown, 71 Tex. 723,10 S. W. 323, 2 L. R. A. 766; S. W Tel. Co. v. Gotcher, 93 Tex. 114, 53 S. W. 686; Davidson v. W. U. Tel. Co., 54 S. W. 830, 21 Ky. Law Rep. 1292; Morrow v. W. U. Tel. Co., 107 Ky. 517, 54 S. W. 853; Rogers v. W. U. Tel. Co., 72 S. C. 290, 51 S. E. 773; Cranford v. W. U. Tel. Co., 138 N. C. 162, 50 S. E. 585; W. U. Tel. Co. v. Kerr, 4 Tex. Civ. App. 280, 23 S. W. 264; W. U. Tel. Co. v. — 560 — Carter, 85 Tex. 580, 22 S. W. 961, 84 Am. St. Rep. 826; W. U. Tel. Co. v. Weniski, 84 Ark. 457, 106 S. W. 486. Mental suffering', resulting from the absence of some one whose presence would be consoling in the time of grief, is recognized as a proper subject of damage.— Jones on Telegraph and Telephone Companies, § 543, p. 51.9. Prom what has been said, it results, from the opinion of the majority of the court, that the averments of the complaint in regard to mental suffering should have been stricken on motion, and that the charges requested by the defendant on the ground of mental suffering should have been given. The plaintiff, Avhen on the stand as a Avitness, Avas asked this question, to wit, “I will ask you if, on account of the absence of your father from the time your husband was killed, and after you sent the telegram, and up to the time he Avas buried, up to the time he came there, and on account of that absence, you suffered any injury to your feelings and mental anguish.” This question Avas objected to, and the answer (which was “Yes”) was moved to be excluded, and the motion overruled. This was error. In an attachment case, in which it was-sought to recover for Avounded feelings, this court held that it was improper to permit the plaintiff to testify that he Avas “much distressed, and harassed in body and mind”- — that he “was almost crazy.” The court., speaking through Stone, J., said: “Such- testimony as this can be legal, only on the theory that for wrongs, identical in nature and degree, the man of delicate organism and acute sensibilities is entitled to greater damages than one of more stoical nature. * * * But such suffering is not the subject of direct proof. It is an inference to be drawn by the jury from the manner and causelessness of the wrong.” — City National Bank v. Jeffries, 73 Ala. 183, 192-193. In the case of Roberts v. W. U. Tel. — 561 — Co., 73 S. C. 520, 52 S. E. 985, there was no objection to the testimony; bnt, in discussing a charge, the court merely remarks that “the plaintiff * * * may testify to the fact that he suffered, after.the circumstances from which the suffering might arise have been brought out; but he cannot' testify as to his peculiar apprehensions, fears, and conclusions, because these might be due to individual temperament.” Another reason why this testimony should be excluded is that it relates to her mental suffering from the time her husband was killed; whereas, if the defendant was liable at all, it could only be for the time between the hour when the father could have gotten there, if the telegram had been promptly delivered, and the time when he did get there. It. was error to allow the plaintiff to ask her own witness — Nortlicutt—if he was not very much distressed at the time and' hardly knew what he was doing. The evident purpose of this was to discredit plaintiff’s own witness, who had testified in certain matters differently from what the plaintiff had testified. This could not be done.— Winston v. Moseley, 2 Stew. 137, 139; So. Bell Tel. & Tel. Co. v. Mayo, 134 Ala. 641, 33 South. 16; Dundas v. Lansing, 75 Mich. 499, 42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457; Bullard v. Pearsall, 53 N. Y. 230. The objection to the question to the witness Nortlicutt as to his age and the age of Jack Nortlicutt was not made until after it was answered, and the objection was properly overruled for this, if for no other reason. The court, erred in refusing to admit the delivery sheet, after proof of the genuineness of the signature. If there was evidence contradicting the genuineness of the signature, it was a queston for the jury to determine, whether — 562 — the telegram was received at the time therein specified. —2 Wigmore on Ev. § 1261; 3 Wigmore on Ev. § 2134. There was no error in admitting the telgram received by Van Horn. The matter of the letters and figures thereon was open to proof as to their meaning, and as to when and by whom they were placed on it, as was also the matter as to whether the person who delivered it was the agent of the defendant. — Collins v. W. U. Tel. Co. 145 Ala. 412, 41 South. 160. The court was in error, after this paper had been introduced, in remarking to counsel for defendant, who denied the delivery of the said message, “you are responsible for it.” The court erred in refusing to give charges 13, 15, 1.6, “o,” and “p,” requested by the defendant.' The plaintiff could recover only on the theory that Northcutt, in sending the telegram, sent it as her agent. In order to constitute an agency, it requires the concurrence of the -minds of both the principal and the agent. — W. U. Tel. Co. v. Adams, 154 Ala. 657, 47 South. 228; Heathcoat v. W. U. Tel. Co., 156 Ala. 339, 47 South. 139; W. U. Tel. Co. v. Heathcoat, 149 Ala. 623, 43 South. 117; W. U. Tel. Co. v. Adair, 115 Ala. 441, 22 South. 73. Charge “c,” requested by the defendant, was an argument-, and was properly'refused; and charge “f” was misleading and faulty, for-referring to the jury to determine what the negligence charged in the complaint- was. Charges 30, 31, “e,” and “g” invaded the province of the jury and were properly refused. — So. C. & C. Co. v. Swinney, 149 Ala. 406, 42 South. 808. Charge 32 was properly refused, as a passenger train might have passed just after he received the telegram, not leaving sufficient time for him to have reached the depot. — 563 — Charge 1, given at the request of the plaintiff, should have been refused. If she was entitled to recover for mental anguish on account of his absence, it would not he “up to the time he could have gotten to her after he received the message,” hut from the time he could and would have reached, up to the time he actually did reach, her. Charge 2, given at the request of the plaintiff, should have been refused. Although plaintiff may have requested Xortlicutt to send the telegram to her father, yet if, as a matter of fact, he did not send it as her agent, but on his own account, he was not acting as her agent. The judgment of the court is reversed, and the cause remanded. Tyson, O. J., and Dowdell, Anderson, and Denson, JJ., concur. Simpson, J., dissents.