Western Union Telegraph Co. v. Hughston

SOMERVILLE, J. (1, 2) The refusal of the trial court, on defendant’s motion, to strike from the complaint allegations of damage for which the law allows no recovery, is not revieAvable error.—Dejarnette v. Dreyfus, 166 Ala. 138, 51 South. 932. Nor is a complaint containing such allegations subject to demurrer on that account.—B. S. Bank v. Rosenbaum, 137 Ala. 530, 34 South. 609. The assignments of error relating to these matters are Avithout merit. [427] (3) The plaintiff was permitted to show that after sending the message to the telegraph office by her son for transmission by the defendant to her nephew at Shreveport, she “went to packing her things in a suit case” and getting ready, and also that she kept them packed for several days. The objections to this evidence seasonably made, were in substance that it'was immaterial to the issues, that it was a conclusion of the witness, and that it was making evidence by the plaintiff for herself. We think, however, that it was clearly relevant and competent for the purpose of showing the plaintiff’s intention and readiness to promptly leave home on a journey to Shreveport if she received an affirmative answer to the message which, as the evidence adduced by her tended to show, she had delivered to the defendant for transmission. The testimony that she made such preparations may of course be false, but there is nothing to indicate that the preparations, if in fact made, were simulated or self-serving merely, and that objection is without merit. Whether the plaintiff’s conduct in this behalf was competent as showing her belief that she’ had sent a message which foreshadowed a journey by her in the contingency of a favorable reply, and hence as corroborating her testimony as to the contents of the message she delivered to the defendant, we need not determine. See, however, 1 Wig. Ev., § 267. (4, 5) The plaintiff was allowed to state that the receipt of the telegram announcing the death of her sister made her “very sad.” This was not a proper way of showing mental anguish.—W. U. T. Co. v. Cleveland, 169 Ala. 131, 53 South. 80, Ann. Cas. 1912G, 534. Nor do we conceive in what aspect this grief of the plaintiff, though naturally arising from the news of her sis [428] ter’s death, was legally relevant to any of the issues in the case. It is not conceivable, however, that the trial judge confused this initial grief with the actionable grief resulting from the plaintiff’s failure to be present at her sister’s funeral, as a basis for the estimation of damages, and we are thoroughly satisfied that this evidence did not in any way affect his conclusions. The matter was purely collateral, and the fact would in any case be inevitably inferred, from the relation of the parties, in the absence of evidence to the contrary, of which there was none. In this connection, we do not overlook the principle declared in Brandon v. Progress Distilling Co., 167 Ala. 365, 52 South. 640, as to error without injury. We think it is not applicable here, however. (6, 7) The judgment entry shows that a demurrer was sustained to the defendant’s plea No. 2, but the demurrer is not set out in the record, and its grounds are not apparent. In such a case the ruling will be sustained if the plea is subject to any ground of demurrer. If not otherwise defective, this plea is technically bad in failing to aver that the plaintiff did not present her claim to the defendanvb company. (8) Plea 4 was but the general issue, and, the general issue being otherwise pleaded, its elimination on demurrer was not prejudicial to the defendant. We find no reversible error in the record, and the judgment will be affirmed. Affirmed. Anderson, C. J., and Mayfield and Gardner, JJ., concur.