Western Union Telegraph Co. v. Benson

48 So. 712, 159 Ala. 254, 1908 Ala. LEXIS 667

• Court: Supreme Court of Alabama
• Decided: December 17, 1908
• Status: Published

Opinion

DENSON, J.

This is an action by the sender of a telegraphic message against the defendant, Western Union Telegraph Company, to recover damages for an alleged breach of the contract on its part in not promptly delivering ■ the message. George Benson, a man of family, who was residing about four miles from Nanvoo, in Walker county, Ala., was assassinated on the morning of July 2, 1906, while walking a foot log over the creek about a mile distant from his home. The plaintiff, his brother, was soon informed of the killing, and went immediately from his work, about 2% miles distant, to where the remains of the deceased were lying on the bank of the creek. He then went to his deceased brother’s'home, and from there to Nauvoo, to notify a justice of the peace for the purpose of having an inquest held. It was late in the afternoon when the justice left Nauvoo and went to where the remains were. Plaintiff, while at Nauvoo that day, between 5 and 7 o’clock p. m., went to the defendant’s telegraph office and had the defendant’s operator to write out for him, on one of the company’s blanks, a telegram addressed to Bill Benson, at Carbon Hill, in Walker county, Ala., about 8 miles distant from Nauvoo. Plaintiff paid the toll on the message and directed the operator to send it. The message is in this language: “Nauvoo, Ala., 7/2/1906. Bill Benson, Carbon Hill, Ala. George Benson shot and killed. Come at once. [Signed] J. R. Benson.”

The complaint, among other things avers that the message was not delivered until about 3 o’clock p. m., July 3, 1906; that if it had been delivered promptly, in accordance with defendant’s agreement, Bill Benson would have received same in time to attend the funeral of George Benson, and in time to aid and advise in “planning and executing said funeral.” and would have aided and advised in planning said funeral. The complaint then concludes with the following averments: “Plaintiff avers, further, that he was damaged on account of defendant’s said breach of said contract, in that he lost the consideration paid for the sending and delivery of said message, and was deprived of the aid, comfort, society, and assistance of Bill Benson while his brother George was a corpse, before burial, and in the burying of said brother George, and was caused thereby to suffer great mental pain, wherefore lie sues.”

The telegram was not received by Bill Benson until about 3 o’clock p. m., July 3, 1906. That ivas a time Avhen and after which there was no train, due to leave Carbon Hill for Nauvoo, that would convey him to Nauvoo in time to attend the funeral and burial. The tendency of the evidence Avas to show that if he received the message by 1:30 p. m., he could and Avould have made connection by train and gone to the burial. He could not obtain a private conveyance, so he and his wife set out on foot to attend the funeral, and late in the afternoon met the family returning from the place of burial. Bill Benson then went to the home of the plaintiff and remained with him two or three days. At the house of the deceased, and attending the funeral and burial along with the plaintiff, there were five sisters and four brothers. Bill Benson, Avho is blind and a minister of the gospel, is the eldest of this family. .

The record shows that the issues were joined on the plea of the general issue and special pleas 4 and 5; demurrers liaA'ing been sustained to pleas 6, 7, 8, 9, and 10. Special pleas 4 and 5 both set up, as a defense, the usual clause of the contract in respect to the free delivery limits of the terminal office, setting it out in hsec verba, and aver that the sender did not pay any extra toll for delivery outside of the free delivery limits, and that defendant’s agent used reasonable diligence to make the delivery of the mesage inside of the limits. The fifth plea contains the additional averments that Bill Benson lived beyond the corporate limits of Carbon Hill, and was not known by name to defendant’s agent at Carbon Hill.

The principal controversy of law and of fact, so far as the mere right of recovery was concerned, arose on the issues presented by these pleas. Under the undisputed facts of the case, Shepherd, the defendant’s operator at Nauvoo, at plaintiff’s request, wrote out the message on one of defendant’s blanks. This constituted him plaintiff’s agent for writing the telegram, and bound the plaintiff by the terms of the contract. — Western, etc, Co. v. Prevatt, 149 Ala. 617, 43 South. 106.

In construing this free delivery clause, on contracts for the transmission of telegraphic messages, this court, through Stone, C. J., said: “When a message is handed in for transmission, the presumption must be and is that the sendee lives within the limits of free delivery, or that the sender takes the risk of delivery unless he makes arrangements for delivery at a greater distance; and handing such message, without explanation, casts no duty on the terminal employe or operator other than to copy the message correctly and deliver it with all convenient speed, if the sendee resides within the free delivery limits.” — Western, etc., Co. v. Henderson, 89 Ala. 510, 517, 7 South. 419, 18 Am. St. Rep. 148; Western, etc., Co. v. Merrill, 144 Ala. 618, 39 South. 121, 113 Am. St. Rep. 66; Western, etc., Co. v. Whitson, 145 Ala. 426, 41 South. 405. It was also said in the Henderson Gase “Free delivery within a half mile is not a restriction of a right, but a qualified privilege granted. It is not an inherent right; for, if it were, in the absence of restriction, it would have no limits.’ It was expressly held in that case that the burden of proving the residence of the sendee to be within the limits 'was upon the plaintiff. This ruling has been recently reaffirmed in the Whitson Case, supra. In the case in judgment, the evidence without conflict showed that the company’s established free delivery limits at. Carbon Hill were embraced within the radius of a half a mile from the company’s office at that place; that the sending agent, had no information that the sendee resided outside of the free delivery limits (if he did so reside) of the terminal office; that if plaintiff knew it he said nothing about the fact, and paid no extra toll to secure delivery outside the limits. In this state of the proof, and in the light of the author ities cited above, it seems clear that the burden of proof on the issue as to whether the sendee resided within the free delivery limits wag upon the plaintiff; and it must follow that the trial, court erred in refusing Avritten charge 19, requested by the defendant.

But it does not follow, from the premises, that charge 23, refused to the defendant, should have been given. The pleas on which the cause was tried contained the averment that reasonable diligence was exercised by defendant’s agent, to make delivery of the message within the free delivery limits. It was therefore an issuable fact in the cause, and evidence Avas offered in support of and against it; and in this connection there Avas evidence tending to show that the sendee had a place of busines within the free delivery limits. On these considerations notwithstanding free delivery may be “a conditional obligation on the part of the defendant, contingent upon Bill Benson’s residence being within the area of free delivery,” it is inapt to say that the defendant, “under the pleading's and evidence in this case,” is not in default until that condition is shown. — Walter v. Alabama, etc., Co., 142 Ala. 474, 482, 39 South. 87.

For similar reasons, the court did not err in refusing charges 3 and 15, requested by the defendant.

Charge 16, refused to the defendant, was properly refused, if for no other reason, because it is misleading, in that the jury might have concluded from its language that, if the plaintiff had failed to met the burden res* ing upon him in respect to the residence of Bill Benson, a verdict should follow for defendant, notwithstanding' they might also have believed from the evidence that defendant’s agent did not exercise reasonable diligence in seeking to make delivery of the message within the free limits.

Under our decisions it cannot be questioned that the relationship of brotherhood (as shown between all the parties concerned in the message) brings this cause within the class of cases where damages are recoverable for the mental pain and anguish consequent upon failure to. promptly deliver the message. — Western, etc., co. v. Ayers, 131 Ala. 391, 31 South. 78, 90 Am. St. Rep. 92; Western, etc., Co. v. Crocker, 135 Ala. 493, 33 South. 45, 59 L. R. A. 398; Western, etc., Co. v. Haley, 143 Ala. 593, 39 South. 386.

The message relating, as it did, to death, there accompanied it a “common-sense suggestion that it was of importance,” and that the persons concerned (that is, sender and sendee) had in it a serious interest; and the surnames of sender, sendee, and person referred to in the-message being the same, we do not doubt that the company was charged with notice of the relationship of the-parties; and withal, the message was sufficient to. rea sonably apprise the defendant of the consequences of a possible failure to deliver it according to the contract,, and that mental pain and angiiish would probably result. — Western, etc., Co v. Long, 148 Ala. 202, 41 South. 965; Cowan v. Western Union Tel. Co., 122 Iowa, 379, 98 N. W. 281, 98 N. W. 281 64 L. R. A. 545, 101 Am. St. Rep. 268; Western, etc., Co. v. Carter, 85 Tex. 580, 22 S. W. 961, 34 Am. St. Rep. 826; Western, etc., Co. v. Moore, 76 Tex. 66, 12 S. W. 949, 18 Am. St. Rep. 25; Bright v. Western, etc., Co., 132 N. C. 317, 43 S. E. 841; Lyles v. Western, etc., Co., 77 S. C. 174, 57 S. E. 725, 12 L. R. A. (N. S.) 534; Thurman v. Western, etc., Co., 105 S. W. 155, 32 Ky. Law Rep. 26, 14 L. R. A. (N. S.) 499, and cases cited in the notes to the text of the opinion. If, then, the plaintiff suffered mental pain, by reason ,of being deprived of the presence of Bill Benson while the brother “was a corpse, before burial, and in burying said brother;” as a proximate consequence of the defendant’s negligence, we are of the opinion that such mental pain is an element of recoverable damages. — Western, etc., Co. v. Henderson, 89 Ala. 510, 519, 7 South. 419, 18 Am. St. Rep. 148.

In arriving at such damages, the jury should not confound the mental anguish naturally arising from the loss of the deceased brother with that which is claimed to result from the defendant’s negligence. — Hancock v. Western, etc., Co., 137 N. C. 497, 49 S. E. 952, 69 L. R. A. 403. That the jury may have a foundation for the assessment of such damages, it is not indispensable that positive or direct evidence of mental pain be produced —such as expressions or exclamations, uttered by the plaintiff, indicative of such suffering — for the jury bring into requisition their own knowledge and experience of human nature, and applying that to the attendant facts and circumstances, estimate damages proceeding from mental anguish. — Western, etc., Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; City Nat. Bank v. Jeffries, 73 Ala. 183, 193; Western, etc., Co. v. Crocker, 135 Ala. 492, 33 South. 45, 59 L. R. A. 398; Willis v. Western, etc., Co., 69 S. C. 531, 48 S. , 104 Am. St. Rep. 828, 2 Am. & Eng. Ann. Cases, 82.

This does not conflict with the recent case of Western, etc., Co. v. Leland, 156 Ala. 334, 47 South. 62. The facts of that case evolve no evidence, either direct or circumstantial, of mental anguish suffered. Indeed, according to the opinion of the court, the attendant facts and circumstances were not such as to warrant the inference that the mental angush for which damages were claimed was occasioned, or augmented, by the negligence of the defendant — the nondelivery of the message. In other words, the effect of that decision is that where a person’s status or circumstances are not changed or affected, by reason of the negligence of the company in not delivering a message, the jury are not authorized to consider mental pain as an element of recoverable damages; and even where there is evidence of mental suffering, the question as to whether it existed as a basis for damages should be left to the jury. — O’Neal v. McKinna, 116 Ala. 607, 620, 22 South. 905.

Looking to the evidence in the case, and upon the foregoing considerations, charges 24, 25, 26, 27, 28, 37, and 38 were properly refused to defendant, each being invasive of the province of the jury.

Charge 30 is argumentative, and, besides, leaves out of consideration other phases of the case.

Charge 32 is argumentative, if not otherwise bad, and was properly refused.

Charge 33 is involved and confusing, and was properly refused.

Refused charges 34, 39, 40, and 42 are argumentative, and were properly refused.

Referring to charges 48 and 49, appellant’s counsel in their brief say it has been expressly decided by this court that, “if the minds of the jury are left confused and uncertain, they should not find for the plaintiff.” Counsel neglected to cite the case. Doubtless they had in mind Calhoun v. Hannan, 87 Ala. 277, 6 South. 291, as explained in the cases of A. G. S. R. R. Co. v. Hill, 93 Ala. 514, 9 South. 722, 30 Am. St. Rep. 65, Brown v. Master, 104 Ala. 451, 464, and L. & N. R. R. Co. v. Sullivan Timber Co., 126 Ala. 95, 103, 27 South. 760. Without stopping to discuss those cases (Rowe v. Baber, 93 Ala. 422, 8 South. 865), but conceding their correctness, both of the charges in question (48 and 49) were properly refused in this instance. Charge 48 assumes that the minds of the jurors are confused and uncertain, while charge 49 is confusing and uncertain in its terms.

Charges 51 and 52 were properly refused. Charge 51 pretermits consideration of one phase of the case, and of the evidence tending to support it (that the residence of Bill Benson was within the free delivery limits). In other words, the charge assumes that his residence was outside the limits. No 52 gives undue prominence to a part of the evidence, and ignores other parts, and, besides, invades the province of the jury.

The proof shows, without conflict, that the free delivery limits fixed by the company for its Carbon Hill office were embraced in a radius of half a mile from the office, so that all persons residing within the radius are entitled to free delivery privileges; and if Bill Benson’s residence was within that radius, it makes no difference that the usual route, in going from the office to his residence, covered more than half a mile. In this view, charges 53 and 54 were properly refused.

What is said by counsel in brief in respect to charges 58, 59, 60, 71, 73, and 75 fails to reach the dignity of an insistence upon the grounds of error covering then:.— 5 Mayf. Dig. p. 32, § 32.

What has been said supra in respect to the effect of the verbiage of the message as notice to the defendant condemns charges 68, 69, and 70 in defendant’s series of refused charges.

The record shows that demurrers were sustained to the ninth and tenth pleas. They were not in the case. Therefore charges A and B were properly refused to defendant. Besides, what is said of these charges is not an insistence upon the grounds of error covering them. —5 Mayf. Dig. p. 32, § 32.

All that is said by appellant’s counsel in respect to the grounds of error which cover charges 1, 4, and 5, given for the plaintiff, is that they ignore the issues made by pleas 9 and 10. It suffices to repeat: The record shows that demurrers were sustained to these pleas, and that issue was not joined thereupon.

If by charge 10, given for the plaintiff, it is meant that exemplary or punitive damages might be assessed (and we fail to see that any other reasonable construction can be placed upon it), the charge asserts an erroneous principle as applied here. The action is ex contractu, and such damages, are not recoverable. — Western, etc., Co. v. Rowell, 153 Ala. 295, 45 South. 73.

The court, over objection of the defendant, allowed Bill Benson to> testify that he would have gone to the burial if he had gotten the telegram in the morning. The complaint avers that Bill Benson would have attended the burial if the telegram had been delivered with proper dispatch; and, it being necessary that such fact be proved, we fail to discern how it could be established otherwise than by the affirmative testimony of the person directly concerned. He was properly allowed to testify. —Bright v. Western, etc, Co., 132 N. C. 326, 43 S. E. 841; Hancock v. Western, etc., Co., 137 N. C. 497, 49 S. E. 952, 69 L. R. A. 403; Western, etc., Co. v. Heathcoat, 149 Ala. 623, 43 South. 117. Plaintiff ivas also properly allowed to prove by Bill Benson that, if he had gotten the message between 8 and 9 o’clock in the morning, he could have made connection on the trains. Authorities supra.

The evidence showed that Bill Benson was blind, and that when he called for the telegram at defendant’s office it was read to him by defendant’s agent before handed to him. Under these circumstances we think it was competent, as a part of the res gesta1 of the delivery, for this witness to testify to what the agent read to him as the telegram. Moreover, the telegram was offered 'in evidence, and there Avas no dispute as to its contents.

There is no merit in the exceptions reserved to the testimony of witness Wakefield, in regard to what occurred betAveen him and Patterson (defendant’s agent), who Avas seeking Bill Benson for the purpose of delivering the message. The questions asked were substantially in the language of the predicates.

While it- may not be permissible for counsel to read the facts from the report of another case to the jury as a part of his argument to them (Williams’ Case, 83 Ala. 68, 3 South. 743), it is not a breach of propriety for counsel, in presenting the laAV of the case to the court, to read the report of the facts of the case in connection Avitli the opinion. This is frequently necessary, to give the court a clear understanding of the laAV. It may be that the court would have the right to exclude the jury from hearing AAdiile the laAV is being thus discussed, and this, we find, the court finally did in the instant case.

As the case must be reversed for the errors pointed out, Ave deem it unnecessary to discuss the objections reserved to the argument of counsel to the jury, further than to say that in some respects the argument Avas extreme, and that counsel should restrain themselves, so as to keep well within the record and leave no room for valid complaint.

We have not given seriatim consideration to the myriad grounds of error assigned. Time and energy would have failed us, had Ave attempted it. We have, however, considered the matters of vital importance Avhich have been insisted upon, and feel that the opinion will be a helpful guide on another trial.

Reversed and remanded.

Tyson, O. J., and Dowdell and Simpson, JJ., concur.