The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1909-04-05
Head Notes Of the Decisions
ofthe Alabama Supreme Court

WESTERN UNION TELEGRAPH CO.
" McNoRRIS.
Damage for Delay in Delivery OF Tel
| egram-(D Decided Dec. II. 1905
10 South. 34s.)
/. Telegraphs and telephones: non
deiiveryt mental anguish.--Mentsi an
guish. although unaccompanied BY In
the negligent failure of the telegraph
company. furnishes grounds for the re-
covery Of damages, II the parties are
within the proper degree Of relation
ship. iE#
2. Damages: mental anguish evil
dence. mental anguish is not suscep'
tible Of direct proof. and such proof IL
not as rule necessary: but II mental
anguish forms an element of recover
able damages II may be inferred from
the circumstances attending the par
ticular breach OF duty complained Of.
3. Same: breach of contract. --Dama-
| ges for breach Of q contract are such
rs reasonably arise naturally from the
breach. or ~ may reasonably be sup
posed to have been in the contsmpIa.
tion of the parties at the making OF
the contract as the possible result Of
| such breach.
II 4. Telegraph and telephone; non de-
livery; damages: mental anguish; re-
iationship. Mental anguish proximate-
| iy caused by the failure to deliver mes
sage or which may be said to arise
naturally and proximately from the,
breach Of the contract to transmit and
deliver. may be recovered for. II the
sender and sendee are within certain
degrees Of Relationship. among which
| that OF brothers fall.
Q. Same: evidence.-Where the EVIL
dence disclosed that the operator knew
that the plaintiff. the sender. and the
deceased were brothers. and the meg
sage recited. Caldwell died last night
will be down with remains this even
ing open grave on our lot" which mes
sage was not delivered and as q con-
sequence. when plaintiff reached the
town with the remains. there was no
one to meet him and no arrangements
had been made for the funeral. the
fury could infer that the plaintiff sur
fered mental anguish, though there was
no direct proof thereof, since the mes
sage suggested that the sendee would
make funeral arrangements. notify
| relatives, etc.
81. same,---where there was no evil
dence that the sendees were at home,
or at their place Of business. the day
the message ought to have arrived. or
that IL they had received the message
=
arrangements for the funeral and have
notified friends and relatives of the
coming Of the remains. there could be
no recovery for mental anguish.
Q. Same.--The fact that the funeral
was postponed and that II rained ON
the day Of the funeral was iriadmissi-
Bile.
Q. Same: nominal damases.--one
sending a telegram requesting the sen
dee to make arrangements for the fu-
neral of the deceased brother OF the
sender. where the toll is paid. Is emit
tied to nominal damages, at least, for
the failure TO -promptly deliver the
messake.
10. same; toll paid: action for
The amount paid for the sending OF the
telegram is not special damages ana
need not be specially claimed, In an
action against the company for failure
to deliver o telegram; but where II Is
averred in the complaint as having
been paid. the proof and recovery
thereon Is authorized under the gen.
erai sum claimed as damages.
IL. same; defensive; strike of en-
pioyes. Where the agent accepted the
toll from the sender and informs him
that he had gotten the message off,
without mentioning any limitation OF
liability OF the company. the fact that
some Of the employees of the company
were on s strike was not available as
a defence to an action for non delivery
OF the message.
IL. Trial; instructions; absence of
.evidence.--No duty is on the trial court
to give charges instructing the jury
that there Is no evidence of q partic-
ular fact.
Appeal from Gadsden City Court.
Heard before Hon. John H. Disque.
Reversed and remanded Opinion by
Tyson, c. J.. Simpson and Anderson.
~, concur.
ALABAMA CENTRAL RAILROAD
I COMPANY v. LONG
Bill to Enjoin Ejectment Suit. (De-
cided Jan. IL, 1909. Kehearing de-
MED Feb. 5, 1909. 49, South. 363.)
]. Eminent domain: remedies: eject
ment: injunction--Where the owner OF
land contracted with railroad COM
pany In writing to convey land for
right Of way, and the railroad con-
structs its road over the land at great
expense with the knowledge and con-
sent of the owner. 1t may rest tain the
owner from suing in eJectment, on Of
fering to do equity and make compen-
sation.
2. SPECIFIC performance remedy: dis
cretion-Regulated by defined rules, the
remedy of specific performance
rests largely in judicial discretion.
8. Same; contracts enforcible--To be
specifically enforced the contract must
be just, ana fair and reasonable reas-
Oh ably certain in respect to the sub
jsct matter and stipulation, and found
| ed on q valuable consideration.
| T. Same; contracts; consideration
n the absence of a showing OF fraud
o. fduciary relations, a consideration
| o. 81 Is sufficient to authorize the
specific performance of a contract for
the conveyance of land to a railroad
fof o right OF way.
| s. Frauds; statutes of; contract for
sale of land; requisites--To be In
compliance with the statute of frauds
contract for the sale of lands must
express a valuable consideration. de-
scribe the subject matter directly, or
make reference to something outside
the writing by resort to which GER
tainty may be established, and must
lie signed by the parties to be charged.
s. Samoa contract Is not within
the statute of frauds where 1t is in
writing and by which the owner of the
and agrees to convey to a railroad
such lands as may be actually used or
OCCUPIED by the railroad on completion
of its roadbeds over named quarter
sections; and when the roadbed is
| oh