Western Union Telegraph Company, a Corporation, Plaintiff in Error, v. G. Wakefield Wells, Defendant in Error, 50 Fla. 474

Cockrell, J., (after stating the facts.) The first error assigned is the overruling defendant’s demurrer to plaintiff’s declaration as amended. The argument here is upon the theory that the declaration disclosses an actual claim for less than one hundred dollars and that therefore it is below the jurisdiction of the Circuit Court, in which court the action was brought. It can hardly be claimed that the stated grounds of the demurrer fairly raise the question of jurisdiction, but as it was raised on the demurrer to the original declaration and was probably argued on this subsequent demurrer, we may dispose of it.

The declaration is in tort for the wilful act of the company whereby the plaintiff suffered in body and mind, and the claim asserted in good faith was far in excess of the minimum amount required for the jurisdiction of the Circuit Court. This coui’t is not committed to the doctrine that a public service corporation can by its negligence or wilfulness cause suffering in body and mind to an individual and then be heard to say it is liable only to a return of the consideration received by it for correct service.

A demurrer is not the proper remedy for getting rid of improper items of special acts of alleged negligence where the declaration makes a case entitling the plaintiff to any recovery whatever, even though it be only nominal damages. Borden v. Western Union Tel. Co., 32 Fla. 394, 13 South. Rep. 876; Cline v. Tampa Water Works Co., 46 Fla. 459, 35 South. Rep. 8, and cases cited.

The circumstances under which the plaintiff was contending; his presence without money and without friends in a large city one thousand miles from his home, with a wife and two small children, and no resources from which he could supply himself or them with food or other necessities on the journey, other than the twenty-five dollars which the telegraph company owed him, these circumstances, it is alleged, were all known to the defendant company; the wilful refusal, without adequate excuse, of the company to pay over to him that sum entitled him undoubtedly to a substantial recovery for the resultant injury to him thereby directly occasioned, in the mortification, inconvenience, physical and mental suffering incident to travelling a great distance without food or other necessities for himself and for those to whom he owed the highest natural obligations.

There is nothing in the allegations of the declaration to justify an argument that these sufferings were self imposed and the ground of the demurrer based thereon must find its suggestion from something outside the declaration. What we have said answers all the contentions made here in support of this demurrer and the assignment is not sustained. The second plea filed by the defendant was insufficient in many respects.

The fact that Munroe & Chambliss, as the plaintiff’s bankers had at his request deposited money with the telegraph company to be transmitted to him, does not make them his agent to such an extent that after suit brought for the negligence of the company, a payment by it to them of the whole amount by them advanced but not all received by the company in the plaintiff’s behalf, could by such act defeat plaintiff’s right of action. Other objections to the plea will readily occur.

The court charged the jury that if they found for the plaintiff they might allow damages for bodily pain and suffering, and in addition thereto damages for mental pain and anguish, which the plaintiff himself suffered, but could not consider as an element of damages any physical pain or mental suffering on the part of his family. The plaintiff in error complains of this charge, the burden of the plaint being that nothing can be recovered under this declaration except the sum paid by the plaintiff to the telegraph company, a position heretofore held untenable.

Reliance is, however, had upon International Ocean Tel. Co. v. Saunders, 32 Fla. 434, 14 South. Rep. 148. There we held that where the failure of a telegraph company to send or deliver promptly a telegram according to its contract, results in no other damages than mental pain and suffering, only nominal damages could be recovered, in an action sounding in tort but for compensative damages for a breach of the contract. This action was not based upon the failure of the telegraph company in promptness, but upon its wilful refusal to pay over money to the plaintiff under the following circumstances: The plaintiff, G.

Wakefield Wells, with his wife and two small children, arrived in Philadelphia, September 26, 1901, en route from Buffalo, N. Y. to Ocala, Fla. Being short of funds, he sent a telegram about 11 a. m. through defendant company to his Ocala bankers saying, “Wire me at once twenty-five dollars waive identification.” Being advised that the reply would be received in two or three hours, he expended all his money except $1.10 in securing a

section in the sleeping car to Jacksonville, Fla. His bankers promptly honored his demand and delivered to the telegraph company in Ocala, the requested sum and the toll, with directions to waive identification. By a mistake of the telegraph company the return message ordered the payment made to “G. Wake Fells” instead of to “G. Wake Wells.” This telegram was not received in Philadelphia until after five o’clock and within a short time of the leaving of the plaintiff’s train.

The agent in Philadelphia expressed himself satisfied with the plaintiff’s identity and that the mistake occurred in the transmission, but declared his inability to pay the money over until the mistake should be corrected, which would take several hours. The plaintiff made known fully his circumstances, the long journey he would be required to take without food and the other incidents to lack of funds, when travelling with a wife and children; that the departure of his train was imminent and that he could not wait the time necessary for the correction.

With all these facts and circumstances fully made known to the defendant company, it yet wilfully refused to pay over the money and must be held to the consequences. The intimate association between mind and body is a matter for discussion among the psycho-physiologists 'but to the laymen, it is clear that a tribunal that allows damages for physical suffering cannot deny damages for the mental suffering attendant upon the physical, the one is as much an actuality as the other, and just as readily determinable by a jury.

There was evidence under the declaration calling for substantial damages and the affirmative instruction requested by the defendant was properly refused. It was left to the jury to say whether the injury to the plaintiff was self imposed, and by their verdict it was found that it was not. Practically nothing was in evidence to justify the charge, certainly nothing that would justify this court in setting aside the jury’s finding.

The refusal of the company to pay over the money compelled the plaintiff to act quickly; he was not aware that he could receive within a few minutes from the sleeping car people the money he had paid for the

section to Jacksonville, nor is there proof of that fact and it is assuredly not within the judicial knowledge of the court, and with the alternative of remaining over night in a large city without funds for either lodging or meals and without assurance of being able at any time of getting his money from the telegraph company, he chose to take at least the assurance of a roof over his head and a return towards his home, where there was a greater possibility of his finding relief. Many exceptions were reserved to the admission of testimony, but we need not set them out seriatim.

It suffices to say that many of these exceptions taken were to the materiality of evidence tending to support the allegations of the declaration as to the plaintiff and his family-being compelled to travel from Philadelphia to Jacksonville without food and without the means to purchase or provide food, for a period of thirty-six hours and more, whereby they became sick and suffered great bodily and mental pain.

No motion was made to strike from the declaration the allegation as to the suffering of the wife and children and the court instructed the jury not to consider as an element of damages any physical pain or mental suffering to the wife and children of the plaintiff. Was harmful error committed then in admitting testimony that the wife and children suffered for food? But one of the three ■methods for discarding improper elements of damages was adopted.

The defendant failed to move to strike them from the declaration nor did it request instructions eliminating the evidence in support thereof, further than was done by the court’s charge; and we are confined to the objections to admissibility, based upon relevancy and materiality; for if the evidence was relevant and material, the further quality of influence or prejudice upon the jury may, indeed should, follow.

It is questionable whether the errors assigned upon the admission of this evidence have been argued so as to demand a decision by us; the point is stated in the brief of the plaintiff in error and the case of Florida Southern Ry. Co. v. Katz, 28 Fla. 139, 1 South. Rep. 473, is cited presumably in support thereof, but the citation has no possible relevancy.

Waiving however the adequacy of the presentation of the assignments but applying our well recognized rule as to general objections to the admissibility of testimony, we look to ascertain if the evidence may be legally pertinent or relevant in any aspect of the case. The conditions fully disclosed to the telegraph company at the time of the tortuous act, and sufficiently alleged in the declaration showed that the probable direct result of its action would be to cause this man with his wife and small children to travel for more than twenty-four hours with but a little more than one dollar.

The public exhibition of his inability to provide the necessities of life for his family tended to add to his own humiliation and mortification, and their condition, as brought out by this testimony, would forbid to any being, however low his moral standard, the application of the one dollar in his possession to the relief of his own individual wants, to the exclusion of the weaker dependents. The conversations between the plaintiff and the agents of the company in Philadelphia were not hearsay.

The plaintiff testified he went first into a branch office of the company where he was directed to the main office and there he held conversation with the receiving clerk and also the cashier. In the absence of countervailing proof this sufficiently established the agency of these employes. With the amount of damages we have nothing to do. No attack was made upon the verdict as excessive. A verdict for the plaintiff was fully warranted and as no errors of law have been made to appear to us, the judgment is affirmed. Shackleford, G. J., and Whitfield, J., concur. Taylor and Parkhill, JJ., concur in the opinion.

Hocker, J., took no

part in the consideration of this case.