
    WESTERN UNION TELEGRAPH CO. v. YOUNG.
    (Court of Civil Appeals of Texas.
    Dec. 13, 1910.
    Rehearing Denied Jan. 5, 1911.)
    1. Telegraphs and Telephones (§ 27) — Delay in Delivery — Message—tConflict oe Laws.
    When a message is received by a telegraph company in one state for transmission to a point in another state, the law of the former state controls as to the liability of the company for failure to promptly transmit and deliver the message.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 27.]
    2. Telegraphs and Telephones (§ 68) — Delay — Mental Anguish.
    An action was brought in Texas against a telegraph company for damages for mental anguish by failing to promptly deliver a telegram sent from a point in Alabama to a point in Texas, and for the cost of sending the telegram. Held, that though, under the law of Alabama as construed by its courts, damages are not recoverable for mental anguish alone, yet under the pleadings the action would lie, as the evidence showed that the sender was the plaintiff’s duly authorized agent to pay the cost of sending the message, and that he sent the message at plaintiffs request, thereby showing a right of recovery, aside from injuries from mental anguish.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.]
    3. Telegraphs and Telephones (§ 66)— Mental Anguish — Evidence.
    In an action for damages for mental anguish for failure to promptly deliver a message, evidence of plaintiff’s intention and ability to attend his brother's funeral, if telegram had been delivered in time, considered, and held sufficient to show that plaintiff was entitled to the damages claimed.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Dec. Dig. § 66.]
    4. Appeal and Error (§ 733) — Assignment op Errors — Objections Too General.
    An assignment of error, submitted as a proposition, that the judgment is without pleading and evidence to support it, is too general to be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3025-3027; Dec. Dig. § 733.]
    Error from Orange County Court; O. R. Sholars, Judge.
    Action by Coleman Young against the Western Union Telegraph Company. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Hume, Robinson & Hume and Geo. H. Fearons, for plaintiff in error. Adams & Huggins, for defendant in error.
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   McMEANS, J.

Coleman Young, plaintiff in the court below, sued the defendant, Western Union Telegraph Company, to recover damages growing out of the failure of defendant to transmit and make timely delivery of a telegram which read as follows: “Birmingham, Alabama, July 30, 1907. Coleman Young, P. O. Box 100, Orange Texas. Columbus Young is dead. Send money. [Signed] Bessie Pool.” Plaintiff alleged, in substance, that his brother, Columbus Young, who was with his and plaintiff’s mother and stepfather in Birmingham, Ala., was afflicted with an incurable disease; that in order' to he advised from- time to time of the condition of his said brother, and in order to supply his said brother with funds which he would need from time to time, and particularly in order to be advised of the death of his said brother when same should occur, so that plaintiff might attend his funeral and supply funds for his proper interment, plaintiff authorized his said mother, Bessie Pool, and his stepfather, C. R. Pool, to act as his joint agents in so advising him; that -Columbus Young died on July 30, 1907, and the said C. R. Pool and Bessie Pool prepared the telegram above set out, which the defendant, in consideration of 65 cents then paid to it, agreed and promised to correctly transmit and deliver to plaintiff then residing at Orange, Tex., within a reasonable time; but that defendant failed to transmit and deliver the same, although it could have done so on said day by the use of reasonable diligence; that by reason of the negligence of defendant to transmit and deliver said message promptly and within a reasonable time plaintiff was prevented from being present at the funeral services of -his brother, which he would have attended, and at which he would have been present had said message been delivered to him promptly, and was not enabled to provide his brother with decent and respectable burial, the said Columbus Young having been destitute at the time of his death, and the family of deceased being wholly dependent upon plaintiff at said time to supply funds for said purpose, and which funds he would have promptly supplied to his said agents for said purpose had said message not been delayed as aforesaid; and he was not able to see that the remains of his brother were properly cared for, which he would have done had said telegram been not so delayed — in consequence of all which he suffered mental anguish and pain to his damage in the sum of $995. He prayed for judgment for said sum and for the 65 cents, being the price paid by his ageáts to the defendant for the transmission of the telegram. Defendant pleaded the general issue and specially pleaded that plaintiff was not entitled to recover damages for mental anguish because the contract alleged was an Alabama contract, being made in that state; that damages recoverable in such cases are governed by the law and decisions of the state of Alabama;’ that actual damages are not recoverable for mental anguish under the law and decisions of said state. The case was tried before the court without a jury and resulted in a judgment for $995.65. From this judgment the defendant has brought the case to this court by writ of error.

The first assignment of error is as follows: “The court erred in rendering judgment for and awarding to plaintiff damages for mental anguish for this: The contract for sending was made in Alabama, and as such was an Alabama contract. The damages recoverable thereunder for a breach thereof being governed and controlled by the law and rules of decision of the courts of Alabama, damages for mental anguish unaccompanied by physical injuries or pecuniary loss cannot be recovered.” Plaintiff in error urged under this assignment that, “plaintiff having sustained no damage other than for mental anguish, under the laws and decisions of the state of Alabama he was not entitled to recover.”

There was no evidence to show what the law and decisions of Alabama in this regard are, but the following agreement, signed by the parties, is found in the record: “It is agreed by and between the parties hereto that either party may present at the trial or upon appeal any law or decision of the state of Alabama affecting this case in any way without pleading same, also may add to same on appeal; it being the purpose to have the law of Alabama established and such advantage taken of said law at any time by either party as may be just under said Alabama law.” We shall assume that under the agreement the decisions from the courts of Alabama upon the question raised by the assignment which are cited in the briefs of the parties were read to the trial judge and considered as evidence by him in reaching his conclusions. The first question raised by the assignment is: Where a message is received by a telegraph company in one state for transmission to a point in another state, does the law of the former state control as to the liability of the company for failure to promptly transmit and deliver the message? Upon the authority of the following cases, this question must be answered in the affirmative: Telegraph Co. v. Sloss, 45 Tex. Civ. App. 153, 100 S. W. 354; Telegraph Co. v. Garrett, 46 Tex. Civ. App. 430, 102 S. W. 456; Telegraph Co. v. Parsley, 121 S. W. 226; Telegraph Co. v. Waller, 96 Tex. 589, 74 S. W. 751, 97 Am. St. Rep. 936; Telegraph Co. v. Cooper, 29 Tex. Civ. App. 591, 69 S. W. 427.

The question that next arises is: Under the laws of Alabama as construed and applied by the courts of that state, are damages arising from mental distress, growing out of a breach of a contract to transmit and deliver a telegram, recoverable against the telegraph company? Prom the decision of the Supreme Court of Alabama in the case of Western Union Telegraph Company v. Hill, 163 Ala. 18, 50 South. 252, 23 L. R. A. (N. S.) 648, decided May 13, 1909, we quote the following: “Likewise, the authorities are far from uniform as to whether or not damages for mental anguish are recoverable in actions for failure or delay in delivering or transmitting telegrams; some courts holding that they are recoverable in certain actions and not in others, some courts holding that they are recoverable under certain conditions and not under others, and some holding that they are not recoverable in any action or under any condition. These various rulings and conflicting decisions involve various perplexing questions, as to all of which very few agree. One is whether the sendee as well as the sendor can recover; whether the action is in contract or in tort; whether the mere violation’ of a contract as to injured feelings and mental anguish, disconnected and disassociated from physical injury or injury to estate, is an element of damages; to what extent the message must show on its face the relationship of the parties; and whether damages for mental anguish are in their nature punitive or compensatory. However, the rule has been settled in this state, and probably cannot be better or more succinctly expressed than was done by Chief Justice McClellan in the case of Blount v. Western Union Tel. Co., 126 Ala. 107, 27 South. 779, as follows: ‘The complaint in this case, claims damages only for mental suffering. Such damages are not recoverable in actions for the nondelivery or negligent delivery of telegrams, except in case where there is a right of recovery aside from such injuries. There can be no recovery of actual substantive damages for physical injuries or injuries in estate here, for no such damages are claimed. There can be no recovery here of nominal damages as for a breach of contract, to .which we have held that damages for mental suffering may be superadded, because the complaint is not upon contract, but purely in tort. No recovery, apart from damages for mental suffering, in other words, can be had on this complaint, and therefore no recovery for mental suffering can be had.’ Or by Chief Justice Tyson, in Westmoreland’s Case, 151 Ála. 319, 44 South. 383, to this effect: ‘Such damages, notwithstanding their elusive character, are actual; but they are ordinarily not the natural result of a breach, and thus not within the contemplation of the parties. In cases where they are not clearly contemplated, it would be dangerous and unfair in the extreme to allow them. When the message is between persons of a close degree of relationship and relates to exceptional events, such as sickness or death of such relations, in which a failure to deliver obviously comprehends mental distress and anguish, we have allowed such anguish as an item of damages; but to extend as a natural result the allowance on other occasions would in our judgment tend to promote and encourage a species of litigation more or less speculative in its nature, and unjust and oppressive in its results.’ Crocker’s Case, 135 Ala. 492, 33 South. 45, 59 L. R. A. 398; Ayers’ Case, 131 Ala. 391, 31 South. 78, 90 Am. St. Rep. 92; Water’s Case, 139 Ala. 653, 36 South. 773; Crumpton’s Case, 138 Ala. 632, 36 South. 517; Henderson’s Case, 89 Ala. 510, 7 South. 419, 18 Am. St. Rep. 148; Krichbaum’s Case, 132 Ala. 535, 31 South. 607; Cunningham’s Case, 99 Ala. 314, 14 South. 579; Wilson’s Case, 93 Ala. 32, 9 South. 414, 30 Am. St. Rep. 23; McNair’s Case, 120 Ala. 99, 23 South. 801. As was said by Chief Justice Tyson in Westmoreland’s Case, above: ‘It is often a question difficult to determine, whether an action from its mere nature or in its form is in case or assumpsit. ⅜ *» ⅜ Manifestly the measure of damages in such cases cannot be altered in any material respect by a mere adoption of one form of action Tather than another for the redress of the same grievance.’ ”

Prom the foregoing we conclude that, under the laws of Alabama as construed by its highest judicial authority, damages for mental suffering in an action for negligent failure to transmit or deliver a telegram are recoverable in such cases as the one under consideration, where there is shown a right of recovery aside from such injuries. This brings us to the further inquiry: Do the pleadings and proof show a right of recovery in Coleman Young other than for mental anguish? He prayed for the recovery of the 65 cents paid by C. R. Pool for transmission and delivery of the telegram, and the allegations of his petition are sufficient to authorize such recovery, and we think that such allegations are amply sustained by the evidence. Coleman Young testified that upon being informed by his mother, Bessie Pool, that his brother, Columbus, had consumption and would not live long, he authorized her and his stepfather, C. R. Pool, to telegraph him at once when Columbus died, and that he would immediately send money to defray his funeral expenses and would also go to Birmingham upon the occasion; that he had authorized his mother and stepfather to send him the telegram; and that his mother and stepfather were his agents for the purpose of sending to him such a telegram. Bessie Pool testified that Coleman Young had told her to notify him at once upon the death of his brother, and that was the reason she sent the telegram. The testimony further shows that when Columbus Young died Bessie Pool dictated the message in question, and that C. R. Pool carried it to the telegraph office and delivered it to the defendant’s agents, and paid to them 65 cents for its transmission and delivery. All of the foregoing testimony was undisputed, and we think that it is clear therefrom that in sending the telegram (loleman’s mother and stepfather were acting for him, and that he was responsible to them for the sum paid by them as telegraph tolls, and that Coleman Young, under the facts of this case, was entitled to recover the amount, so paid, from the telegraph company. This being true, the pleadings and proof show a right of recovery aside from injuries for mental distress, and in such cases damages for mental anguish are recoverable under the laws of Alabama. Telegraph Co. v. Wilson, 93 Ala. 32, 9 South. 414, 30 Am. St. Rep. 23. The assignment presents no reversible error and is overruled.

The second assignment complains that the judgment is contrary to law because it was not shown that plaintiff could and would have been present at the funeral but for defendant’s failure to deliver the telegram. Plaintiff testified that, had he received the telegram on the day it was sent, or the day afterward, he would have departed on the night train and would have been at his brother’s funeral. He also testified that he had saved up sufficient funds to pay the expenses of his trip to Birmingham in order to be present at the funeral of his brother, whose death he had for some time anticipated. We think that the undisputed proof showing that he would have been present at the funeral, had the message been delivered, implies that he could have attended, and that more definite proof that he could have so attended was unnecessary.

The third assignment, submitted as a proposition, is that the judgment is without pleading and evidence to support it. Appel-lee objects to the consideration of dhe assignment on the ground that the same is too general, and we think the objection should be sustained.

This disposes of all the assignments of error urged by plaintiff in error, and, none of them presenting any reversible errors, the judgment of the court below must lie affirmed.

Affirmed.  