Western Union Telegraph Co. v. Appleton

de GRAFFENRIED, J. -(1) The count upon which this case ivas tried is in tort. It is well settled that in this form of action for damages for delay in the delivery, or for the nondelivery, or for negligence in the transmission or delivery, of a telegram, the sendee cannot recover for mental pain and anguish, unless there is a right of recovery aside from such injuries. — Western Union Telegraph Co. v. Blocker, 138 Ala. 484, 35 South. 468; Western Union Telegraph Co. v. Jackson, 163 Ala. 9, 50 South. 316; Western Union Telegraph Co. v. Brown, 6 Ala. App. 339, 59 South. 329. (2) The complaint in this case shows that the telegram in question was sent by the plaintiff’s agent to her, and we think shows with sufficient clearness the loss to her of the 40 cents which was paid to the defendant as its toll for transmitting the telegram. The complaint was not subject to the demurrer which was interposed to it by the defendant. — Authorities, supra. (3) 2. The evidence in this case we think conclusively establishes: That the plaintiff’s agent delivered to a telegraph agent of the defendant, at Athens, Ga., a telegram in the following words: “Come at once. Mother is dead. Answer when coming.” That the telegram was properly addressed to the plaintiff at New Castle, Ala. That the agent of the plaintiff paid the defendant 40 cents for transmitting and delivering the telegram, and that New Castle was the only address of the plaintiff. In other words, we think that there was no evidence that the address of the telegram to the plaintiff was an insufficient address. We also think that [286] there was evidence from which the jury had the right to infer that the plaintiff, by reason of the unnecessary delay of the defendant in delivering the telegram to her, was denied the privilege of attending her mother’s funeral, and that if the telegram had been delivered to her with reasonable dispatch she could and would have been present at her mother’s funeral. Under the evidence in this case, if it was believed by the jury, the plaintiff was entitled to recover damages for such mental pain and anguish as was suffered by her because of her failure to be present at her mother’s funeral. Indeed, it seems to us that all of the questions which are presented to us by appellant have been determined adversely to it in the following cases: Western Union Tel. Co. v. Jackson, supra; Western Union Tel. Co. v. Blocker, supra; Western Union Telegraph Co. v. Anniston Cordage Co., 6 Ala. App. 351, 59 South. 757; Western Union Telegraph Co. v. Boteler, 183 Ala. 457, 62 South. 822; Western Union Telegraph Co. v. Wright, 169 Ala. 107, 53 South. 95. (4) 3. When the plaintiff concluded her testimony, the defendant moved the court to exclude all of the evidence, upon the ground that the plaintiff had failed to make out her case. The plaintiff had' introduced relevant evidence tending to establish at least some — if not all- — of the material allegations of her complaint. This being true, the trial court will not be put in error for refusing this motion of the defendant. — McCray v. Sharpe, 188 Ala. 375, 66 South. 441. If the defendant had, when the plaintiff closed her case, demurred, to* the testimony, or had refused to offer testimony in its behalf, and had then asked for affirmative instructions in its behalf, a different question would be before us.— McCray v. Sharpe, supra. [287] 4. This record and the briefs of counsel have been painstakingly examined. Under the authorities above cited this case was a case for the determination of the jury. In our opinion there is reversible error in this record, however, because of the refusal of the trial court to grant the motion for a new trial on the ground of excessiveness of the verdict. Under Acts 1911, p. 587, we think that a verdict of $400 is sufficient, and if the plaintiff will remit all in excess of said amount the judgment will be corrected and affirmed, unless the defendant’s counsel object thereto under the proviso of said act. Counsel for appellee are given 10 days Avithin which to file their acceptance or rejection of the reduction in the verdict, after the acceptance by the appellee, if there by an acceptance. The clerk will mail a copy of this order to Harsh & Fitts, and a copy to George H. Fearons, Forney Johnston, and W. R. C. Cocke, and Avill record the original on the minutes of the court, together with the acceptance of the reduction, in Avhich event the case is corrected and affirmed. Corrected and affirmed conditionally. Anderson, C. J., and McClellan and Sayre, JJ., concur. SUPPLEMENTAL OPINION. de GRAFFENRIED, J. The appellee not having consented to the reduction of the amount of the judgment as indicated in the above opinion and within the time alloAved by law, the judgment of the court below is reversed, and the cause is remanded for further proceedings in the court below. Anderson, C. J., and McClellan and Sayre, JJ., concur.