Western Union Telegraph v. Burns

EVANS, J. The complaint is in case, and counts on a breach of duty by the defendant telegraph company, in respect to the delivery of a telegraphic message sent by the plaintiff to her husband from Anniston to North Birmingham, Alabama. The message .was in this language: “Wife sick, come at once.” The gravamen of the complaint is that, through the negligence of the defendant, the message was not delivered until two days after it was received for transmission. The conclusion of the complaint is as follows.: “And as a proximate consequence thereof, plaintiff, who was sick, at or near Anniston, suffered great mental pain and anguish, and was deprived of the presence of her said husband for a long time, and lost the price paid to the defendant for the transmission and delivery of the message as aforesaid, to wit, fifty cents ($ .50). All to plaintiff’s damage,. $2,000, wherefore she sues.” The demurrer to the complaint, as is brought out in the brief of counsel for appellant, proceeds upon — 257 — the idea that the complaint fails to show any damage to the plaintiff in person or estate, and that, failing in this respect, the complaint fails to state a substantial cause of action. Since the case of Blount v. Western, etc., Co., 126 Ala. 105, 27 South. 779, decided during the November term, 1899, of this court, it has been the law in this jurisdiction that, in an action in tort against a telegraph company, a complaint which seeks to recover only damages for mental suffering, without damages actual and substantial, constitutes no cause of action and is demurrable. — W. U. T. Co. v. Krichbaum, 132 Ala. 535, 31 South. 607; W. U. Tel. Co. v. Blocker, 138 Ala. 484, 35 South. 468; W. U. Tel. Co. v. Waters, 139 Ala. 652, 36 South. 773; W. U. Tel. Co. v. Willie Jackson, 163 Ala. 9, 50 South. 316. But it is also the settled law of this state that a complaint in tort which claims, as damages, the toll paid for the sending of the message, in addition to damages for mental anguish, is safe from demurrer; and that if negligence is established and proof made of the payment of the toll, the plaintiff will be entitled to have added, to the amount of such toll, damages for mental suffering. — W. U. Tel. Co. v. Krichbaum, 145 Ala. 409, 41 South. 16; W. U. Tel. Co. v. Garthright, 151 Ala. 413, 44 South. 212. So the question we have for determination is, Does the complaint claim any item of damages other than that for mental anguish; does it claim the amount paid as toll for the transmission of the message? It would seem that neither discussion nor reference to authorities is necessary to an affirmative answer to this question, as upon an inspection of the complaint it is difficult to conceive how variant opinions, on this point, could be entertained. The complaint itself affords the affirma — 258 — tive answer, and. the demurrer to the complaint was properly overruled. — W. U. Tel. Co. v. Garthright, supra. The thirteenth is the nest ground in the assignment of errors discussed in the brief of appellant’s counsel. This ground is based upon the court’s refusal of the affirmative charge requested by the defendant. We will treat seriatim the points made in the brief against this ruling of the court. The first reason urged as why the charge should have been given is shown to be without merit by what we have said touching the ruling of the court on the demurrer. In respect to the second reason given, it is necessary to bring in view a part of the pleadings. The defendant, by plea 2, set up as a defense that one of the conditions of the contract under which message was received for transmission and delivery was as follows: “Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance, a special charge will be made to cover the cost of delivery.” The plea avers that the defendant’s established free delivery limit at North Birmingham was “a radius of one mile from its office in said townthat the sendee resided 1% miles from the office ; and that “plaintiff did not pay or cause to be paid or tender to defendant any special or additional charge for delivery beyond the established free delivery limits of the terminal office.” In the first place, issue was joined on this plea, and, even if it should be conceded that there is evidence in the record tending to show that the defendant company had established free delivery limits, as alleged in the plea, yet it cannot be said that the evidence in this respect was of such a nature as to warrant a- charge from — 259 — the court that such limits were established. Moreover, there was evidence tending to show that the place of delivery of the message was within the limits. Therefore on this point it cannot be said that the plea was established beyond adverse inference. Furthermore, while special replication 2 to plea 2 was charged out by the court, yet replication 4 to plea 2 remained in the cause, and the record affords evidence tending to prove its allegations; and the facts therein alleged, if found in favor of the plaintiff, ivere sufficient to overcome the defense set up in plea 2. In this connection it is pertinent to discuss the effect of the action of the agent of the company, at the' office in Anniston, in transcribing the message to one of defendant’s printed forms. The testimony in the case in reference to the message’s being written on one of defendant’s forms is that of Tyson, who, as plaintiff’s agent, delivered the message at defendant’s office for transmission. He testified that the message was written on “regular writing paper”; that he gave the message to defendant’s agent just as plaintiff had written it, and he (the agent) copied it; that “the agent said it would have to be transferred to other paper.” The court is of the opinion that the most that can be said, in behalf of the defendant, in this matter, is that it was a question for the jury, whether the agent, in transcribing the message to one of defendant’s forms, should be considered the plaintiff’s agent. Certainly it cannot be said as a matter of law that he was acting for the plaintiff. —Harris’s Case, 121 Ala. 519, 25 South. 910, 77 Am. St. Rep. 70. The foregoing discussion shows the lack of merit in appellant’s contention that the affirmative charge should have been given for it, on the idea of a variance between the averments of the complaint, and the proof. — 260 — —L. & N. R. R. Co. v. Landers, 185 Ala. 510, 33 South. 482; Southern Ry. Co. v. Well, 143 Ala. 311, 39 South. 262, 111 Am. St. Rep. 45. What we have already said in respect to the effect of the agent at. Anniston in transcribing the message to one of defendant’s forms, suffices to show that the court committed no error in refusing charge 22, requested by the defendant. The case under consideration is not similar to that of Western Union Telegraph Co. v. Prevatt 149 Ala. 617, 43 South. 106. In that case the sender of the message could neither read nor write, and procured one of the telegraph company’s employes to write the message for him; and the court held that the employe, in writing the message, was the sender’s agent, in such sense as to bind the sender to a stipulation on the form. The case we have in hand falls without the influence of the Prevatt Case, and is governed by the Harris Gase, supra. If the contract of delivery of the message was made with regard to free delivery limits, then the burden of showing that such limits had been established, and the area of the same, was upon the defendant; and after this, the burden of showing that the sendee of the message resided within the limits was upon the plaintiff. — Western Union, etc., Co. v. Whitson, 145 Ala. 426, 41 South. 405, and cases there cited; W. U. Tel. Co. v. Benson, 159 Ala. 254, 48 South. 712. The court, in the part of the oral charge excepted to, correctly charged that the burden was upon defendant to show that “there was a free delivery limit,” but erroneously stated that the burden was upon the defendant to show that the sendee “lived” without such limit (authority supra); but the two propositions as stated by the trial court, while separable, are embraced in the •same sentence, and to make the error pointed out available as reversible error the part of the charge containing it should have been segregated by the exception. — 261 — This was not done. Hence, the appellant can take nothing by the ground in the assignment of errors covering the part of the oral charge above referred to. The testimony is not free from inference that box 116 of route 7 was within the free delivery limits of the de- ¡ fendant company at North Birmingham, even conceding that the evidence shows the establishment there of free delivery limits; and the evidence is without conflict that if the message had been delivered at that box expeditiously, then according to arrangements made by the sendee with Mrs. Bailey it would have been at once delivered to him. Charge 3, requested by the defendant, leaves out of consideration these phases of the evidence, and was properly refused. — Rowell’s Case, 153 Ala. 295, 45 South. (5th h. n.), p. 74. Furthermore, the evidence tends to show that box 116 was within North Birmingham, and that the sending operator of the defendant stated to Tyson, the sendee’s agent, that the message would be delivered to North Birmingham, “all right,” without extra charge. Upon the considerations adverted to in discussing charge 3, and in the light of Mrs. Bailey’s testimony as to the location of box 116, it must be held that the question propounded to Mrs. Bailey, “Did or not any telegraph messenger bring any telegram to your house from the 30th of June up to the 3rd day of July?” was properly allowed. Even if there was a contract between the parties, in respect to the free delivery limits (Harris’s Case, supra) and the address of the message implied delivery by depositing the message in box 116, still an expeditious delivery would be indispensable to the discharge of defendant’s duty; and it is clear that, in leaving out of consideration that character of delivery, charge 4, requested by defendant, was at least misleading, and was properly refused. — 262 — Charge 11 was misleading, and, in the light of the testimony, was invasive of the province of the jury. Even if charge 25, refused to defendant, asserted a correct proposition, the action of the court in refusing it worked no injury to the defendant; for in accordance with the proposition asserted by the charge, the address carried home to the defendant’s sending operator notice or knowledge that the sendee lived outside the free delivery limits, and the undisputed testimony shows that the plaintiff’s agent offered for the plaintiff, to pay to the sending operator any extra charge for making the delivery of the message, and that he replied that there would be no extra charge. Moreover, the charge was misleading and called for explanation. It was properly refused. ’ Charge 13 was properly refused for assuming that the area of the limits within which delivery of messages would be made free of additional charge was shown by the evidence; or, we might say, the evidence fails to show the area of the free delivery limits, or that any such limits were established. Charge 11 was properly refused, for the assumption that free delivery limits had been established by the defendant. We have discussed all the grounds of error insisted upon by the appellant, and find no error in the record prejudicial to it. Affirmed. Dowdell, C. J., and Anderson and Sayre, JJ., concur. The foregoing opinion was prepared by Justice Den-son before his retirement as Associate Justice, and having been adopted in consultation it is now announced as the opinion of this court.