Western Union Telegraph Co. v. Garthright

Supreme Court of Alabama

Western Union Telegraph Co. v. Garthright

44 So. 212, 151 Ala. 413, 1907 Ala. LEXIS 532

CourtSupreme Court of Alabama

DecidedJune 6, 1907

StatusPublished

Cited by13 cases

This text of 44 So. 212 (Western Union Telegraph Co. v. Garthright) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Western Union Telegraph Co. v. Garthright, 44 So. 212, 151 Ala. 413, 1907 Ala. LEXIS 532 (Ala. 1907).

Pincite

Opinion

ANDERSON, J.

Both counts of the complaint seek a recovery for a breach of the contract for the transmission of the message, and the complaint was not subject to the ground of demurrer proceeding upon the theory of a misjoinder. The first contains averments of a negligent failure to deliver the telegram, but this is merely descriptive of the mode in which the contract was broken. — W. U. Tel. Co. v. Crumpton, 138 Ala. 632, 36 South. 517.

The first count, as amended, avers that the contract for the transmission of the message was made with the plaintiff, through her agent, Shannon, and was not subject to the second ground of the demurrer as refiled to the other count after amendment. — W. U. Tel. Co. v. Manker, 145 Ala. 418, 41 South. 850; W. U. T. Co. v. Wilson, 93 Ala. 35, 9 South. 414, 30 Am. St. Rep. 23.

The third and fourth grounds of the demurrer relate to the claim of damages for mental anguish. The complaint sets out a good claim for actual damages, the toll paid. — W. U. T. Co. v. Krichbaum, 145 Ala. 409, 41 [416]*416South. 16; Westmoreland v. W. U. T. Co., 150 Ala. —, 43 South. 79. And if it did not set up a good claim for mental anguish, which we need not decide, it was not a demurrable defect. When the complaint makes out a cause of action for the recovery of any damages, hut combines in addition thereto a claim for nonrecoverable damages, the proper way to rid it of the improper claim is, hot by demuiúer, but by motion to strike, objection to the evidence,' or special instructions to the jury. — Westmoreland's Case, supra; Kennon Brothers v. W. U. T. Co., 92 Ala., 399, 9 South. 200; Daugherty v. A. U. T. Co., 75 Ala. 168, 51 Am. Rep. 435; W. U. T. Co. v. Milton, (Fla.) 43 South. 495.

The paper purporting to be a bill of exceptions cannot be considered, as it was not properly signed, and is controlled both in law and fact by the case of White v. Roe, 151 Ala. —, 44 South. 211.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ.„ concur.

Free access — add to your briefcase to read the full text and ask questions with AI

ANDERSON, J.

Both counts of the complaint seek a recovery for a breach of the contract for the transmission of the message, and the complaint was not subject to the ground of demurrer proceeding upon the theory of a misjoinder. The first contains averments of a negligent failure to deliver the telegram, but this is merely descriptive of the mode in which the contract was broken. — W. U. Tel. Co. v. Crumpton, 138 Ala. 632, 36 South. 517.

The first count, as amended, avers that the contract for the transmission of the message was made with the plaintiff, through her agent, Shannon, and was not subject to the second ground of the demurrer as refiled to the other count after amendment. — W. U. Tel. Co. v. Manker, 145 Ala. 418, 41 South. 850; W. U. T. Co. v. Wilson, 93 Ala. 35, 9 South. 414, 30 Am. St. Rep. 23.

The third and fourth grounds of the demurrer relate to the claim of damages for mental anguish. The complaint sets out a good claim for actual damages, the toll paid. — W. U. T. Co. v. Krichbaum, 145 Ala. 409, 41 [416]*416South. 16; Westmoreland v. W. U. T. Co., 150 Ala. —, 43 South. 79. And if it did not set up a good claim for mental anguish, which we need not decide, it was not a demurrable defect. When the complaint makes out a cause of action for the recovery of any damages, hut combines in addition thereto a claim for nonrecoverable damages, the proper way to rid it of the improper claim is, hot by demuiúer, but by motion to strike, objection to the evidence,' or special instructions to the jury. — Westmoreland's Case, supra; Kennon Brothers v. W. U. T. Co., 92 Ala., 399, 9 South. 200; Daugherty v. A. U. T. Co., 75 Ala. 168, 51 Am. Rep. 435; W. U. T. Co. v. Milton, (Fla.) 43 South. 495.

The paper purporting to be a bill of exceptions cannot be considered, as it was not properly signed, and is controlled both in law and fact by the case of White v. Roe, 151 Ala. —, 44 South. 211.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ.„ concur.

Cite This Page — Counsel Stack

Bluebook (online)

44 So. 212, 151 Ala. 413, 1907 Ala. LEXIS 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-union-telegraph-co-v-garthright-ala-1907.

Opinion

Related

Cite This Page — Counsel Stack