Western Union Telegraph Co. v. Garthright

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

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 ; 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.