Western Union Telegraph Company v. Morrison.

Appellee (plaintiff below) instituted his action to recover damages for failure to deliver a telegram sent to his brother-in-law from Moundville, in Hale county, to Pell City, in St. Clair county, advising that appellee’s son was at the point of death and requesting sendee to bring appellee’s children to Moundville. The action was ex contractu.

The complaint contained but one count, which the reporter will set out. The message was of such character as to advise appellant that mental pain and anguish might ensue from a breach of the contract. A plea in abatement was timely interposed, challenging plaintiff’s right under the venue statute (section 6112, Code 1907) to institute his action in Hale county, inasmuch as plaintiff was a resident of St. Clair county and the default or failure to deliver said message occurred also in St. Clair county. The trial court sustained demurrers to the plea; and even if it be conceded that the demurrers should have been overruled, as the plea contained appropriate averments as to plaintiff’s residence and the company’s business in St. Clair county, and also a denial that the “injury occurred” in Hale county, yet the plea could not have been sustained under the facts of the case as we interpret section 6112; and the ruling upon demurrer, though erroneous, was innocuous. — Going, pro ami, v. Ala. Steel & Wire Co., 141 Ala. 587, 37 South. 784.

(1-3) We think the complaint sufficient to withstand the attack of the demurrers, and the ruling of the trial court thereon was not erroneous. Some of the demurrers were inapt as applied to an action ex contractu, and others were general. The question of agency between the plaintiff and the- person actually sending the telegram for plaintiff is not specifically raised by *538 demurrer; and, while we do not express an opinion as to whether such a demurrer would be well or ill taken, we are of the opinion that the complaint was good as against the demurrers filed. One ground of demurrer argued challenges the sufficiency of the complaint because it failed to aver that plaintiff’s children could or would have been present at the death and burial, had the telegram been promptly delivered; and counsel cite in support thereof a recent opinion by this court. — Western Union Tel. Co. v. Hawkins, 14 Ala. App. 295, 70 South. 12. A suit ex contractu setting up the contract and showing the breach counted on is sufficient as against demurrer, for every breach of a contract imports nominal damages in the absence of proof of actual damages, and all general or necessary, as contradistinguished from special damages, may be proved without particular averments, for defendant is presumed to have notice that such are claimed; the purpose of particularity in the averment or claim of special damages — i. e., such as are the natural and proximate, though not the necessary consequence of the breach — is to put defendant on notice that such will be claimed at the trial and prevent surprise. It is not the office of a demurrer to test damages improperly claimed; the count should rather be purged by motion to strike, or objections to the evidence, or be limited through charges to reach such vice. — Ala. Gt. Sou. R. R. Co. v. Tapia, 94 Ala. 226, 10 South. 236; L. & N. R. R. Co. v. McCool, 167 Ala. 644, 52 South. 656; Treadwell v. Tillis, 108 Ala. 262, 18 South. 886; B’ham, Ry. Lt. & P. Co. v. Tate, 7 Ala. App. 517, 61 South. 32. Good pleading requires that the ultimate facts and not evidential facts be presented for issue. Here the question of whether the children could not or would not have attended the death bed and funeral, which the demurrer would compel as a necessary averment of the complaint, has only a probative or evidential bearing upon the proof of plaintiff’s case, to wit, the proximate cause of the special damages for mental anguish. The holding in Western Union Tel. Co. v. Hawkins, supra, in so far as it conflicts with the views herein expressed, is overruled.

Code, § 6112, reads: “A foreign or domestic corporation may be sued in any county in which it does business by agent; but all actions for personal injuries must be brought in the county where the injury» occurred, or in the county where the plaintiff resides, if such corporation does business by agent in the county of plaintiff’s residence.”

*539 The questions then arise: (1) Was this ex contractu action one for “personal injuries,” within the meaning of said section; and, (2) where did the “injury occur,” within the meaning of that phrase as used in said section ?

In Hatches v. South. Ry. Co., 191 Ala. 634, 68 South. 55, which was an action ex delicto for the breach of duty in the carriage of a passenger, the court had this section before it and there said:

“The argument for appellant in support of the first-stated contention necessarily resolves itself into the affirmation of the proposition that a ‘personal injury/ to come within the purview of section 6112, must be a direct physical hurt to the body. This court, in the case of Garrison v. Burden, 40 Ala. 513, 515, 516, while interpreting the phrase ‘injuries to the person in the statute governing the survival of actions — a phrase at least susceptible of an interpretation more favorable to the appellant’s view of the proper meaning of the words ‘personal injuries’ in section 6112 — it was expressly ruled that the signification and effect of the phrase could not be restricted to ‘direct physical hurts to the body of a person.’ The soundness of the stated doctrine of the cited decision has been particularly recognized in Long v. Booe, 106 Ala. 570, 17 South. 716. The like doctrine was reiterated and illustrated in the case of Jefferson Fertilizer Co. v. Rich, 182 Ala. 633, 62 South. 40. It is well and generally settled, we think, that injuries to the person or personal injuries comprehend mental distress, annoyance, inconvenience, humiliation, and such other manifestations of disturbed or perturbed feelings as ordinary persons are supposed to be subject to. The following authorities may, in that connection, be read with interest and profit: Sou. Ry. Co. v. Hobson [4 Ala. App. 408] 58 South. 751; Morton v. W. U. T. Co., 130 N. C. 299, 41 S. E. 484; W. U. T. Co. v. Kauffman (Tex. Civ. App.) 107 S. W. 630; McKenzie v. Doran, 39 Mont. 593, 104 Pac. 677; Johnson v. Bradstreet, 87 Ga. 79, 13 S. E. 250; McDonald v. Brown, 23 R. I. 546, 51 Atl. 213, 58 L. R. A. 768, 91 Am. St. Rep. 659; Hutcherson v. Durden, 113 Ga. 987, 39 S. E. 495, 54 L. R. A. 811; State v. Ross, 24 N. D. 586, 139 N. W. 1051; Riddle v. MacFadden, 201 N. Y. 215, 94 N. E. 644. We do not think the question is debatable.”

The question then recurs: Since the plaintiff elects to waive the tort and sue for the breach of the contract, does he ipso facto so alter his action that it cannot be said to be one for “personal *540 injuries?” In other words, what stamps the action as one for “personal injuries,” the form or the subject-matter?

The intrinsic, substantive nature that inheres in the right of action cannot be lost sight of because the fancy of the pleader, electing between the concurrent remedies of assumpsit and case, prefers to present his grievance in the garb of the former rather than the latter. If this be not true, then the pleader could choose his venue at will, the statute to the contrary notwithstanding; so the court will have regard to the substance rather than the form to ascertain whether the action be one for “personal injuries” as that phrase is used in said section 6112.

Assuming then the action sub judice to be one for “personal injuries,” did the “injury occur” in Hale county, in the sense that that phrase is employed in section 6112?

This section brings forward in the Code 1907 the amendatory venue act relating to personal injury suits enacted March 5, 1903 (Acts 1903, p. 182), and the then and prior existent general venue statute (section 4207, Code 1896) has been brought forward and codified in the present Code as section 6112. These two statutes, being in pari materia, should be construed together. Section 6110 reads: “All actions on contracts, except as may be otherwise provided, must be brought in the county in which the defendant, or one of the defendants, resides, if such defendant has within the state a permanent residence; all other personal fictions, if the defendant, or one of the defendants, has within the state a permanent residence, may be brought in the county of such residence, or in the county in which the act or omission complained of may have been done, or may have occurred. All actions for the recovery of land,” etc.

Just what was in the legislative mind in using the phrase “where the injury occurred” in section 6112 is not altogether clear or free from difficulty. At common law, personal actions were transitory and might be.brought wherever service could be had upon the person. Our venue statutes, being in derogation and abridgement of this privilege, are not to derive anything by way of intendment so as to be extended beyond the express enactment of the legislative will.

Ordinarily, the paramount consideration in determining the place to institute suit is: Where did the cause of action arise, i. e.) where did the unlawful act or omission take place? The word “injury” in a technical sense ordinarily signifies a tort *541 and is defined by Bouvier as “a wrong or tort,” and of simliar import is 22 Cyc. 1064. “Injury” implies an unlawful invasion of one’s rights, and hence imports at least nominal damages. The words “injury” and “damage” are not infrequently confounded and used loosely as synonymous or interchangeable, whereas in strictness they are widely variant, bearing to one another the relation of cause and effect; the injuria being the unlawful invasion of one’s rights or property, whereas the damnum is the extent or measure of that invasion. So that if technical significance be given the words of the statute, “where the injury occurred,” it would refer to a tort and mean where the cause of action arose; in the instant case meaning the default in delivery of the message, which was in St. Clair county.

But we are of the opinion that when the Legislature employed the phrase “injury occurred,” in section 6112, it did not have in contemplation or intend the technical signification of that phrase, drawing the distinction above indicated; but rather employed it loosely in the popular sense of where the damage occurred or “accident” took place. This interpretation is in a measure superinduced and fortified by reference to section 6110, Code 1907 (section 4205, Code 1896). It will be observed that this section, before the amendment in section 6112, fixed and controlled the venue for all personal actions — tort and contract — fixing the venue (1) in both tort and contract actions at the residence of the defendant (or one of the defendants), and (2) in cases of tort “in the county in which the act or omission complained of may have been done, or may há¡ve occurred.”

One of the changes wrought by the amendment reversed the condition as to residence, providing that actions for personal injuries be brought in the county of the plaintiff’s instead of defendant’s residence; the other, that suit be brought “in the county where the injury occurred,” instead of “in the county in which the act or omission complained of may have been done, or may have occurred.” Had the Legislature no intention to legislate upon any other subject except the plaintiff’s or defendant’s residence, undoubtedly the amendment would have related only to that phase of the matter; but it is significant that the amendment also fixed the venue where the “injury occurred,” instead of employing the language of the old statute, “where the act or omission occurred.” •

*542 We doubt whether the unusual or anomalous condition ever occurred to the legislative mind that the act or omission might occur in one county and the damages proximately flowing therefrom in another, but rather that the injuria and damnum were regarded as so intimately interwoven and correlated as to be coincident in locality.

In giving effect and operation to the legislative intent, instances will readily occur to the mind where it would be difficult, if not impossible, to localize the damages, as might readily be done with regard to the tort or cause of action, e. g., the mental anguish of the sender of a death message might be suffered in a half dozen counties by reason of the deprivation of comfort and consolation on a funeral train, or where an express messenger contracted pneumonia on his route because of failure or negligence in heating of his car. It would be quite a difficult, if not impossible, thing to say that the messenger contracted his cold in one county rather than another; so that, where the damage is suffered in more than one county, the plaintiff may bring his action in any county in which he suffers damage, electing in which he will sue.

We do not consider the effect of section 232 of the Constitution upon the venue in this case; for aught that appears from the pleadings, the appellant may be a domestic corporation, construing the complaint most strongly against the pleader. It follows from what we have said that, since appellee suffered damage in Hale county and was a resident of St. Clair county, either forum was open to him.

A review of the several assignments of error relating to the testimony does not, we think, disclose prejudicial error.

(4) It is argued that the complaint fails to show a contractual relation between the parties to the suit, because the averment is that: “The defendant in consideration of the payment to it by or for the plaintiff of a certain sum of money or of the liability incurred by the plaintiff to pay a certain sum of money undertook,” etc.

In other words, that the complaint is no stronger than its weakest alternative averment, and non constat if money was paid “for” the plaintiff he may be a stranger to or beneficiary of the contract and perchance not the sole beneficiary, and predicated on this supposed absence of a contractual relation a number of refused- charges were asked and are now assigned as error.

*543 (5) While the complaint may be said to be somewhat inartificially drawn, it is not open to the criticism directed against it, for its meaning is certain to a common intent and it would be a strained and unreasonable construction that would infer plaintiff to be a beneficiary and not a party to the contract. Plaintiff’s testimony showed that he was a mile or mile and a half out of Moundville in Hale county at the bedside of his son. When the son was at the point of death, plaintiff instructed one H. J. Dockery to send the telegram in question. In order to send the message, Dockery had to employ the telephone and also enlist the services of one or two other people to get the telegram to appellant’s office; and on the question of the agency of these intermediaries certain of the refused charges are predicated. Suffice it to say that, when the appellee instructed Dockery to send the telegram, he clothed him with such authority as might be necessary or proper to effectuate the purpose of having appellant receive and send the message. The relation of principal and agent does not depend on express appointment and acceptance, but it may be implied from the words and conduct of the parties and the circumstances of the case. — 31 Cyc. 1217. Then, too, appellee might have ratified and confirmed what his agent Dickery did. However, these questions of agency and contract were for the jury.

(6-8) We have carefully reviewed appellant’s written requests for charges. Under the issues and tendencies of the testimony charges embraced within assignments 17 and 19 were properly refused, being requests for the general affirmative charge. Charges embraced within assignments 15, 16, and 18, were also properly refused, being invasive of the province of the jury. Charge No. 6 embraced in assignment 20 was properly refused as misleading and invasive under the complaint as framed, for, if a valid contract was made and appellee had “incurred liability” for the fee or toll, its voluntary payment would not relieve the defendant from liability for breach of the contract. Charges embraced within assignments 21, 24, 25, 28, and 30, were properly refused, because there was no requirement upon the plaintiff that he should, in order to sustain his action, show a successive line of agencies or subagencies operating •through the several parties or intermediaries assisting in delivering the message to the defendant company for transmission. It was enough if the proof showed that the person delivering the *544 message to the defendant company was acting in behalf of plain-, tiff as his agent or subagent, and that the defendant company accepted it for transmission. Charges embraced within assignments 22 and 23 were properly refused, because they predicated nonliability unless the jury found that the contract was made for the sole benefit of plaintiff or that Geo. B. Pickens was agent of plaintiff, and non constat the evidence afforded an inference he might have been defendant’s agent in receiving the message, which would have fastened liability upon the defendant upon its subsequent acceptance for transmission; and, further, because it pretermits consideration of all question or inference of an implied contract to be derived from the company’s acceptance of a telegram signed in the name of plaintiff.

Assignments 26 and 27: The voluntary payment of the consideration after the breach of the contract did not relieve the defendant from liability for damages resulting from a breach of contract.

(9) Assignments Nos. 29, 31, 32, 33, 34, and 35, will be treated as waived, as they are not discussed in appellant’s brief.

(10) A motion for a new trial predicated upon errors in law should point them out. — Moneagle & Co. v. Livingston, 150 Ala. 562, 43 South. 840; Ewart Lumber Co. v. American Cement Plaster Co., 9 Ala. App. 152, 62 South. 560; Ala. Mid. Ry. Co. v. Brown, 129 Ala. 282, 29 South. 548; Winter & Loeb v. Judkins, 106 Ala. 259, 17 South. 627.

(11, 12) A verdict and judgment was had for $808; but upon the motion for a new trial appellee entered a remittitur of $308, thus reducing the amount to $500. A further insistence of the motion for a new trial is that the jury arrived at its verdict illegally, i. e., by means of a quotient verdict. A reading of the affidavit of Thomas E, Knight, of counsel for-defendant, would very strongly convince one that such was the case; but one of the jurors testified in opposition to the motion and very positively denied that any agreement or understanding was entered into by the jury, and that, on the contrary, it was explained or mentioned in the jury room that such an agreement would vitiate the verdict. He did testify, however, that the amounts were set down by each juror and then the aggregate was divided by 12 to ascertain the quotient; but the juror testified that it was understood that this procedure should not be binding upon any of the jury, and, in fact, thereafter the matter was further discussed *545 for some time before rendering the verdict. The test is a preconcerted understanding or agreement to abide the result; and, as the trial judge heard the testimony, we are unable to say that he plainly erred in his conclusion upon the motion. — B’ham Ry., Lt. & P. Co. v. Moore, 148 Ala. 115, 42 South. 1024.

After careful consideration of this record, we find no reversible error, and the judgment of the trial court is affirmed.

Affirmed.

ON REHEARING.

(13) On the original consideration of this case, the writer entertained the view that the demurrers to the defendant’s plea in abatement were properly sustained, and hence concurred in the conclusion that the judgment should be affirmed. The reasons impelling this conclusion are that the cause of action declared on is the breach of a contract, and the plaintiff’s right of recovery is dependent upon his right to recover damages separate and distinct from such as may have resulted from mental anguish. — Blount v. W. U. T. Co., 126 Ala. 105, 27 South. 779; W. U. T. Co. v. Krichbaum, 132 Ala. 535, 31 South. 607. When the plaintiff establishes his right to recover damages for the breach of the contract, though it be only nominal damages, then damages for mental pain and anguish “may be superadded.”— Blount v. W. U. T. Co., supra; W. U. T. Co. v. Rowell, 153 Ala. 295, 45 South. 73.

This being true, the right to recover nominal damages in this case is the sine qua non of the cause of action; and the suit is, in theory and substance, an action on contract, and not an action for personal injuries within the meaning of section 6112 of the Code. The Constitution (section 232) fixes the venue of suits against foreign corporations that have qualified to do business in this state in this language: “Such corporation may be sued in any county where it does business.”

The other members of the court concur in these views, and the application for rehearing is overruled.

Application overruled.