The Montgomery advertiser., 1908-02-13

so as to render the defendant liable Tor negligence in the tranmsssion or delivery thereof.
 2. Same: actions; danages---where the action Is h tort for failure to deliver or for delay in delivery of social telegram. and there is no proof or injury to the person or estate, darn- ages for mental pain and anguish are not recoverable; but where the action is ex contractu. for breach of the con tract to deliver. a recovery may be had for mental pain and anguish, d. though only nominal damages are sus- tained.
 3. Contracts; action for breach; mo- tive.--Except in some special eases. such as action for breach of contract of marriage, or for breach of statutory bond. the motive or intent of the de- fendant cannot be considered.
 Teiegraphs and telephones; oper-. ation; action; character; pleading.--A complaint alleging that plaintiff arr ranged with c. to notify him by tele- gram if his wife. was sick; that com plying herewith c. delivered a mes sage to defendants agents addressed to plaintiff, at the same time inform Ing defendants agents of the arrange ment with plaintiff, and that defendant failed willfully and wantonly to de- ltNGI the I0lckEdIA 0h ne aBEcSu t0 QOs etc. is in ex contractu and not ex delicto.
 5. Same; defenses.--Where a tele- gram was addressed to plaintiff in care of certain railroad shop, where plain tiff was employed. 1t was the telegraph company's duty to deliver the message at the shop; delivery to some agent of the railroad company at the shop would have been a compliance with it's contract. so that it cannot escape liability for failure to deliver the mes- sage on the plea that plaintiff was not at the shops or the city, or that plain tiffs agent who sent the message. was notified byA defendant that plaintiff was not in the city but at another place, and failed to send the message to the .place where the plaintiff was.
 6. Evidence; judicial notice; scien- tific facts and principles.--The nature, operation and ordinary usage of the telephone, are facts of general scien- tific knowledge of which the courts take Judicial notice as a part of pub lie contemporaneous history. [. Same; action for damages; admis- sibilty--Conversati had over tel- ephone in relation to business are ad- missibIe in evidence. although the voice of the person, or person, at the tele- phone is not identified; such conver- sation stands on the same footing as personal interviews in relation to the business had by a customer with an unk nown clerk in an ordinary shop.
 8. Trial; questions for Jury.-Ai- though evidence of q conversation held over the telephone is admissible it's construction and effect is question for the jury to decide.
 g. Telegraphs and telephones; fall ure to deliver; evidence; jury ques- tion.-where the evidence showed that plaintiff, to whom the message was sent. called the defendant over the telephone. to inquire about the delivery of the message, the question whether or not such conversation was had and whether or not the person with whom the conversation was had had author ity to speak for the company, was for the determination of the jury.
 10. Same: peyidenca; admfssibility. Where the evidence showed that plaintiff to whom the message was sent had A conversation over the telephone with some employe' of the defendant company, the tendency of which was to show that the defendant had not exercised due diligence to denver the message, such conversation was prop erly admitted in evidence.
 ii. Evidence, declaration; phsyical condition; opinion evidence; expert ev- idence.---In an action for failure to deliver telegram whereby sendee was dAIaved several days in reaching his wtfe's bedside, it was competent for the sendee to show that his wire was sick and nervous when he reaened her and had been so previous to that time; the declarations of the wire made to the sendee that she had been mighty sick and nervous, and by the attend ing physician to show her condition
 fa Trial; instructions. Written charges had in form mayaa alway be properly refused.
 13 Sme: proximate cause.-Where the agent of plaintiff sent telegram to the plaintiff stating Come on first train your wife is sick" and at the time of the sending informed defen- dant's agent that plaintiffs wife was sick. the defendant Is presumed 10 know that plaintiff would endure great mental suffering as a natural conse- ouenca of the failure to deliver tele- erano and it may be said that such sufeY,nR was the proximate result or the failure to deliver.
 IA. Same instructions-An instruc- tion asserting that when plaintin learned that he had been kept away from the bedside of his wife while she was sick, by reason of the negligence of the defendant, when IL was hls uu- sire and wish to be with her and to do what he could for her relief, after he realized that, then in retrospec- five way he may have suffered mental anguish because kept away from her bedside, is not erroneous as tending to convey the idea that there could he recovery for the wife's suffering or as embracing the idea of mental suf- fering before plaintiff reached his wife.
 IS. Same.--A charge was properly refused as misleading which asserts that plaintiff could not recover for any anxiety or mental distress he may have sustained by reason of his wife's suffering. since. while no recovery should be had for mental suffering sunerinduced alone by the wife's suf- fering, yet the suffering Of the wife is a factor to be considered by the jury in connection with the conduct of the telegraph company in arriving at their conclusion as to whether the nIaintiff endured mental suffering as @ proxinate result of a breach of the conpany's contract to deliver.
 Appeal from Montgomery City Court.
 Heard before Hon. A. D. Sayre.
 Reversed and remanded. Opinion by Denson, J.
 Tyson. C. J., Simpson and Anderson. JJ., concur.
 ELMoRE. EFT AL. vs. FIELDS. Trespss o. c. F.-(Decided Nov. 2s.
 iso7. 45 So. Rep. 6e.) (Rehear-
 ing denied December 1e, 19O7D
 1. Trespass; action, description of Ia1H H-Tn an action of frasDass a C