Middleton v. Western U. Tel. Co.

ANDERSON, J. — In some cases it has been held that there can be no recovery for mental anguish where the negligence of the defendant telegraph company merely causes a prolongation of mental anguish already existing, hut which a delivery of the message would have relieved. — 37 Cyc. 1786; Sparkman v. Western Union Co., 130 N. C. 447, 41 S. E. 881; Rowell v. Western Union Co., 75 Tex. 26, 12 S. W. 534, and other Texas cases. On the other hand, several very respectable courts have failed to appreciate a distinction between the production of mental anguish and the prolongation of same, and we agree with these courts, in the holding that the distinction attempted by the Texas Court and adopted by the North Carolina court is too shadowy, and in legal and physical results is merely imaginary. — Western Union Co. v. Hollingsworth, 83 Ark. 39, 102 S. W. 681, 11 L. R. A. (N. S.) 497, 119 Am. St. Rep. 105, 13 Ann. Cas. 397; Dayvis v. Western Union Co., 139 N. C. [216] 79, 51 S. E. 898 (wherein the holding on this point in the Sparkman Gase, supra, was disapproved) ; Fass v. Western Union Co., 82 S. C. 461, 64 S. E. 235; Willis v. Western Union Co., 69 S. C. 531, 48 S. E. 538, 104 Am. St. Rep. 828, 2 Ann. Cas. 52; Cornelly v. Telegraph Co., 100 Va. 51, 40 S. E. 618, 56 L. R. A. 663, 93 Am. St. Rep. 919; 3 Sutherland on Damages, § 975. While this court has limited the right to recover for mental anguish to parties hearing a certain relationship (Telegraph Co. v. Ayers, 131 Ala. 391, 31 South. 78, 90 Am. St. Rep. 92) and to cases of death or sickness (Sledge v. Western Union Co., 163 Ala. 4, 50 South. 886; Westmoreland’s Case, 151 Ala. 319, 44 South. 382), we have never held that the parties were confined to mental anguish actually produced as distinguished from a prolongation of mental suffering. In other words, if a negligent failure to deliver a message tends to increase or continue mental suffering, we see no good reason why damages should not be recovered for same upon the same theory that a recovery is allowed for originally causing or producing mental anguish. The Leland Gase in no sense approves this distinction. This case is first reported in 156 Ala. 334, 47 South. 62, and we purposely pretermitted deciding this identical question, but expressly decided the case upon the idea that the failure to deliver the message could not increase or diminish the mental anguish of the plaintiff. Said the court, speaking through the present writer: “The failure to deliver the telegram in question did not, under the proof, proximately increase or diminish in the slightest degree the mental anguish of the plaintiff.” Upon the next appeal of this case (159 Ala. 245, 49 South. 252), while the opinion as written by Simpson, J., discussed this question and shows an inclination to approve the holding in the Texas cases and the case of Sparkman, [217] supra, and does not treat the Willis Case very seriously, the point was not decided, as the opinion concludes as follows: “Without deciding this point, even under the Willis Gase and our own previous decision in this case, there is no evidence in this case tending to show that, if the answer had been received, it would have given any information different from that he already had.” Moreover, the writer in discussing the authorities on the foregoing point, overlooked the fact that the distinction made by the Texas court had not only been ignored in cases other than the Willis Gase, but had been severally criticised by text-writers and courts in •other jurisdictions. In fact the North Carolina case of Sparkman, the only one following the Texas cases, was subsequently overruled in the case of Dayvis v. Tel. Co., 139 N. C. 79, 51 S. E. 898. We have also held that in order for the plaintiff to recover for mental anguish the damage must have been within the contemplation of the parties, and that there can be no recovery on this ground unless the telegraph company had notice, from the language of the message or otherwise, that by reason of its negligence or default such damages would be likely to result. — Westmoreland's Case, 151 Ala. 319, 44 South. 382; 37 Cyc. 1780. We are of the opinion that the plaintiff’s complaint makes out a case for the recovery of damages for mental anguish and brings her within the protection of the rule as sanctioned in this jurisdiction. It is addressed to the mother of a child, to whose life or safety it refers, and carries notice on its face that a negligent failure to deliver same .will likely prolong or increase the mental anguish of the mother, the sendee, and for whose benefit it was sent, and the trial court erred in sustaining the defendant’s motion to strike this claim for damages from the complaint. [218] The judgment of the city court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.