Western Union Tel. Co. v. Rowell

EVANS, J. This action is predicted upon an alleged breach of a contract whereby the defendant undertook, for a reward, to transmit and deliver a telegraphic message sent to the plaintiff by his agent. The plaintiff obtained a verdict and judgment, on the trial in the lower court, for the sum of $1,500, and the defendant prosecutes, this appeal to reverse the judgment. The first ground in the assignment of errors challenges the correctness of the court’s decision overruling- the defendant’s motion to strike from the complaint certain items of damages therein claimed. The refusal of the trial court to strike the items of damages from the complaint was not reversible error, even though such items were not recoverable, for the reason that the defendant might protect himself against the recovery of such damages by objections to evidence or by special charges to the jury to exclude them. — Vandiver & Co. v. Waller, Adm’x, 143 Ala. 411, 417, 39 South. 139, and the [655] cases there cited. This is the second appeal in this cause,, the report of. the cause on the former appeal appearing in 153 Ala. 295, 45 South. 73. On the second •trial issue was joined on the complaint and on the plea of the general issue. The testimony as to> plaintiff’s conversation Avith Mitchell could not have worked any injury to the defendant. • All.that it tended to' show was that a message had gone to the Atlantic Coast Line shops, addressed to W. H. Powell; and this was a conceded fact in the case, or, at least, the evidence in respect thereto was undisputed. This disposes of the second, third, and fourth grounds in the assignment of errors. The trial court was within the ruling made on the first appeal, in allo.Aving this question to be propounded to the plaintiff: “What did she (plaintiff’s wife) say to you, when you first got there, about her sickness?” 'Even if a part of the answer to the question is illegal, in the absence of a motion to exclude it we cannot notice it here. The principle that although reversible error may be committed in admitting testimony, yet if the court subesquently excludes such testimony erroneously admitted the error is cured, is too Avell established in this jurisdiction to be noAv overturned. In accordance with this principle, the appellant can take nothing by •the sixth ground in the assignment of errors. — Smith’s Case, 107 Ala. 139, 144, 145, 18 South. 306; DeYampert’s Case, 139 Ala. 55, 36 South. 772.. The exceptions to the testimony of Avitnesses Ward and Cameron, in regard to the physical condition of Mrs. RoAvell, presented for revieAV .by the seventh, eighth, ninth, and tenth grounds in the assignment of errors, possess • no merit. Under the express, ruling made when the cause-was here before, such. testimony was held admissible. — Western Union Tel. Co. v. Rowell, 153 Ala. 295, 45 South. 73. [656] Charges 4, 5, and 6, requested by the defendant, were properly refused. Charge 4 is misleading and argumentative, and, besides, does not assert a correct proposition of law.- It is not in consonance with the ruling made in the case on the former appeal. — 153 Ala. 295, 320, 321, 45 South. 73. If it had asserted, simply, that the plaintiff could not recover for the mental suffering of the wife, it should have been given; but that was not its purport. But even if such had been its purport or tenor, the fact remains that the defendant received the benefit of that proposition under the charges given at Its request, found on pages 51 and 52 of the record. If the defendant had delivered the message to some one at the railway shops, but who had no connection with the shops, manifestly this would not have been a perform-' anee of its duty under the contract; hence, charge 5 was well refused. As has been stated, the case wa,s tried on the general issue; no rule of the company was pleaded, hence, that the message was sent collect was immaterial, and charge -6 was properly refused. Furthermore, the charge ignored the arrangement made by Cameron with the agent of the defendant, at Notasulga, in respect to toll for the message. We have given consideration to the decision of the court overruling the motion for a new trial. The only ground of the motion here discussed is that the verdict is excessive. We cannot agree with appellant upon this proposition. It was submitted to the jury to determine the amount of damages, and upon consideration of the evidence we cannot say that the verdict of $1,500 is excessive. There is in the record no error requiring a reversal of the judgment, and consequently it must be affirmed. Affirmed. [657] Dowdell, O. J.,' and Anderson and Mayfield, JJ., ■concur. The foregoing opinion ivas prepared by Justice Den-son before his retirement as associate justice, and has been adopted as the opinion of the court.