2. MUNICIPAL CORPORATIONS (§ 706*)-COL-| tiff was injured and damaged in person and LISION OF AUTOMOBILE AND MOTORCYCLE NEGLIGENCE-PLEADING. A complaint is not within the rule that, where it in general terms avers negligence, and then sets out the particular acts as constituting the alleged negligence, it is demurrable, unless such acts in themselves amount to negligence, where the complaint alleges in general terms that the turning of defendant's automobile on a street, causing collision with plaintiff's motorcycle, was negligent, and, though mentioning some features of this negligent act, does not set them out as constituting the negligence charged, or undertake to detail the facts or circumstances relied on as rendering defendant's act negligent. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 706.*] property. [1] It is not questioned that it is settled in this state that when the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule it is sufficient for the complaint to aver the facts out of which the duty to act springs, and that the defendant was negligent in the performance of such duty, and that it is not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty; that, the duty to exercise care being shown, the failure to perform that duty, the negligence causing the injuries complained of, Appeal from Circuit Court, Mobile County; may well be averred in the most general Samuel B. Browne, Judge. Action by Oron Overton against Albert P. Bush. Judgment for defendant. Plaintiff appeals. Reversed and remanded. terms, little, if at all, short of the mere conclusions of the pleader. Louisville & Nashville R. Co. v. Church, 155 Ala. 329, 46. South. 457, 130 Am. St. Rep. 29; Postal Webb & McAlpine, for appellant. Stevens Telegraph Cable Co. v. Jones, 133 Ala. 217, & Lyons, for appellee. WALKER, P. J. As the argument in be 32 South. 500; Louisville & Nashville R. Co. v. Marbury Lumber Co., 125 Ala. 237, 28 South. 438, 50 L. R. A. 620. But it is insisted in behalf of the appellee that the complaint fails to show that any duty was owing to the plaintiff. The complaint shows that the defendant's automobile was being driven along a city street, upon which at the same time the plaintiff was riding on his motorcycle; the two vehicles being near enough to each other for the negligent operation of the one to result in disaster to the other. The driving of an automobile on a public highway necessarily imposes upon the person in charge of its operation the duty of exercising reasonable care to avoid inflicting wrong and injury upon others who may lawfully be using the same highway. The complaint sufficiently shows that the defendant, through his employé, had assumed this duty, and that the plaintiff, because of his use at the same time of the same highway, and in such proximity to the automobile as to be endangered by its negligent operation, was in a position to entitle him to claim to be at that particular time a person to whom the duty imposed upon the defendant was owing. half of the appellant is confined to the action of the trial court in sustaining the demurrers to the two counts of the complaint as they were amended, those rulings alone will be considered. The amended first count avers that on a date named, "while the plaintiff was riding a motorcycle on the north side of Government street, going west, and was at or near the intersection of Rapier avenue and Government street, two of the public streets of the city of Mobile, a servant of the defendant, to wit, the chauffeur in charge of an automobile, which he was then and there driving, in the line and scope of his employment and duties as a servant of the defendant, the name of the chauffeur, as plaintiff avers, being unknown to the plaintiff, negligently turned the said automobile, with unnecessary suddenness, and without warning of any character, across the course that the plaintiff was traveling, and, in so doing, negligently brought about a collision between plaintiff's said motorcycle and the said automobile." The amended second count is in the main similar in its averments, but It is suggested that the duty mentioned is it alleges that the automobile was proceed- not one owing by a driver of a vehicle to a ing in the same direction that plaintiff was traveler in the rear, who is going in the same proceeding, "a very short distance ahead of direction, and that, therefore, neither of the plaintiff's said motorcycle," and that the de- counts under consideration shows that the fendant's servant in charge of the automo- plaintiff was in a position to complain of any bile, "then and there acting within the line deflection of the automobile from the course or scope of his employment and his duty to in which it had been running, as the second his employer, the defendant, negligently, and of those counts avers that the automobile without warning of any character to the was ahead, while it may be presumed, from plaintiff, turned the said automobile across the allegations of the first of those counts, the course that plaintiff was traveling; the that such was the case, as it does not aver said turn being made with such suddenness that the fact was otherwise. No good reason as to negligently cause the said motorcycle is advanced for putting such a limitation upand the said automobile to collide." Each on the duty of a person having charge of a of the counts alleges in due form that, as vehicle on a public highway. While the driva proximate result of the collision, the plain- | er of the vehicle has the right to turn to the but they are not set out as constituting the negligence charged. Neither of those counts undertakes to detail the facts or circumstances relied upon as rendering the act of the driver of the automobile negligent. We are of opinion that, under the rule above stated, each of those counts sufficiently shows the existence of a duty owing to the plaintiff, and the negligent breach of that duty by the defendant, and that neither of them was subject to demurrer on any of the grounds stated. Reversed and remanded. (3 Ala. App. 263) WESTERN UNION TELEGRAPH CO. v. SNELL. (Appellate Court of Alabama. Nov. 23, 1911. 1. TELEGRAPHS AND TELEPHONES (§ 73*)— In an action for negligence in transmitting and delivering a death message, evidence held to require submission of the issue of defendant's negligence to the jury. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 76; Dec. Dig. § 73.*] 2. PLEADING (8 34*)-COMPLAINT-CON STRUCTION OF LANGUAGE. one side or the other, and to use any part of the highway not at the time lawfully occupied by another, yet this right must be exercised in such a reasonable manner as not unduly to interfere with the lawful use of the highway by others, whether they be in front, on the side, or in the rear, and whether they are going in the same or in the opposite direction. Plainly, it is possible for the condition of traffic in a city street to be such at a given time that an abrupt stopping or turning aside of a vehicle may involve danger to a traveler in the rear who is going in the same direction. The choice by a traveler of the part of the highway to be used by him must be reasonable, in view of the circumstances surrounding his exercise of the right. When a collision between two vehicles occurs on the one in front making a turn, the result may be attributable either to the failure of the driver of the rear vehicle to be duly watchful of the one in front, and to be prepared for any change in its direction that may reasonably be anticipated, or to the negligence of the driver of the front vehicle in making the turn in such a way or under such circumstances as to render the collision unavoidable by the other driver. While it cannot be said that under all circumstances it is the duty of a driver of a vehicle in a city thoroughfare to give a signal to vehicles that may be following of his intention to turn, neither can it be said that an abrupt turn of a vehicle in such a place may not be so made as to constitute the act negligence in reference to another vehicle in the rear which is moving in the same direction. The question as to which driver was at fault and responsible for the collision depends upon the circumstances of the occurrence. Rand v. Syms, 162 Mass. 163, 38 N. E. 196; Bierbach v. Goodyear Rubber Co. (C. C.) 14 Fed. 826; 37 Cyc. 272. In each of the A complaint for delay in delivering a counts under consideration the fault is at- death message charged that plaintiff paid detributed to the person in charge of the front fendant's charges for sending the message to J. at "A., Alabama, Route 1"; that defendant vehicle. broke the contract, in that it negligently fail[2] It is further urged in behalf of the ap-ed to transmit the message to J. at the address pellee that each of the counts in question was subject to demurrer on some of the grounds assigned, because each of those counts sets out the facts relied on as constituting negligence, and the facts so alleged do not constitute negligence. It is a familiar rule that where a complaint in general terms avers negligence, and then sets out the particular act or acts as constituting the alleged negligence, unless such act or acts in themselves amount to negligence, the complaint is demurrable. Johnson v. Birmingham Railway, L. & P. Co., 149 Ala. 529, 43 South. 33. But we are of the opinion that this is not a case for the application of that rule. In each of the counts under consideration the allegation is made in general terms that the turning of the automobile was negligent, and some features of this negligent act are mentioned; | 38.*] Under the statute requiring plaintiff to state his cause of action in plain language, the words used will be given their ordinary import, unless they possess some peculiar technical meaning; technical objections not going to the merits of the cause of action being disregarded. Cent. Dig. §8 66, 70; Dec. Dig. § 34.*] 3. TELEGRAPHS AND TELEPHONES (§ 65*)— DEATH MESSAGE-DELAY IN DELIVERY — PLEADING-COMPLAINT. given in the message. Held, that such count ing to transmit and deliver the message to was not demurrable as showing an undertak"Route 1," and in failing to allege that the message was not promptly transmitted to that route. and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. [Ed. Note.-For other cases, see Telegraphs § 65.*] 4. TELEGRAPHS AND TELEPHONES (§ 38*)— DELIVERY-DELAY. Where defendant telegraph company accepted a death message addressed to J. on a particular rural route, and the sender offered service, it was no defense for defendant's deto pay any additional charge for messenger lay in delivering the message that it might have refused to accept the message because of the residence of the addressee in the coun try. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 33; Dec. Dig. § 5. TELEGRAPHS AND TELEPHONES (§ 66*)MESSAGES-Delivery-FreE DELIVERY LIMITS EVIDENCE. general claim of damages, and therefore defendant could not object to an award of damages for mental suffering on the theory that there was no claim for actual damages. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. § 60; Dec. Dig. § DELAY IN DELIVERY-PRESUMPTIONS. Where there was no evidence that the contract made for the transmission of a death message contained any stipulations with reference to free delivery limits, and defendant | 65.*] was informed of the importance of the mes- 11. TELEGRAPHS AND TELEPHONES (§ 66*)sage and of the sender's willingness to pay all extra charges necessary to its reasonably prompt delivery, the court did not err in refusing to permit evidence that the addressee did not live within the free delivery limits of the city to which the message was addressed. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*] 6. TELEGRAPHS AND TELEPHONES (§ 66*). DEATH MESSAGE FAILURE TO DELIVER NEGLIGENCE EVIDENCE. Where a death message sent only a short distance did not reach the addressee until nearly six days after it had been sent to him, and was then received from his wife, who had received it from the mails, such facts were sufficient to raise an inference that defendant was negligent in delivering the message. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 61; Dec. Dig. 8 66.*] 7. TELEGRAPHS AND TELEPHONES (§ 66*) – DEATH MESSAGE - DELIVERY-DELAY-PRE SUMPTIONS. Where both the addressees of death messages delayed in transmission and delivery were so situated that at little expense they could have attended the funeral of their mother, of whose death they were advised by the messages, if they had received them within a reasonable time, the jury were authorized to infer that they would have done so. Where the addressee of a death message received it from his wife, who had received it from the mails some six days after it had been filed for transmission, it would be presumed message with reasonable promptness immedithat the post office authorities transmitted the ately on receiving it. [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 61: Dec. Dig. § 66.*] Appeal from City Court of Gadsden; John H. Disque, Judge. Action by Emma Snell against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed. Goodhue & Blackwood, for appellant. Bilbro, Inzer & Stephens, for appellee. DE GRAFFENRIED, J. This suit was brought by appellee against appellant for damages for the breach of two contracts for the transmission and delivery, within a reasonable time, of two telegrams, one to a sister and the other to a brother of appellee. Appellee lived in the country about five miles from Altoona, a station on the Louisville & Nashville Railroad. Her sister, Annie Harris, to whom one of the telegrams was sent, [Ed. Note.-For other cases, see Telegraphs and Telephones, Cent. Dig. § 61; Dec. Dig. lived on the same railroad at Alabama City, 66.*] 8. TELEGRAPHS AND TELEPHONES (§ 68*) — DEATH MESSAGE-NEGLIGENT TRANSMISSION IN DELIVERY-MENTAL ANGUISH. Where, on the death of plaintiff's mother, she promptly sent telegrams to her brother and sister, announcing the time of the funeral, but they did not attend because of negligent delay in transmitting and delivering the messages, plaintiff was entitled to recover for mental anguish as a part of the damages sustained. [Ed. Note. For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 69, 70; Dec. Dig. § 68.*] 9. TRIAL (§ 295*)-INSTRUCTIONS-CONSIDERATION AS A WHOLE. A judgment will not be reversed because a separate part of the charge standing alone and unexplained is erroneous, if the charge, construed as a whole, contains a correct statement of the law applicable to the case. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 703-717; Dec. Dig. § 295.*] On Rehearing. 10. TELEGRAPHS AND TELEPHONES (8 65*)DAMAGES-PLEADING. Where an action was brought to recover damages for a telegraph company's breach of two contracts for transmission and delivery within a reasonable time of two death messages, and in each count it was alleged that plaintiff paid defendant the charges for sending the messages, in that it negligently failed to transmit and deliver them, plaintiff was entitled to recover the charges paid under the 18 miles from Altoona, and between the two places there were two passenger trains going each way daily, one in the morning and the other in the afternoon. Billy Jones, the brother, to whom the other telegram was sent, lived about three miles from Ensley on rural free delivery mail route 1. Alabama City is a cotton mill town, which is a suburb of Gadsden, and which appears not to be of sufficient commercial importance for the appellant to maintain a telegraph office there. Telegrams over the lines of the Western Union Telegraph Company to Alabama City are sent to Gadsden, and telephoned from Gadsden over to the agent of appellant at Alabama City. Ensley is a suburb of Birmingham, and is easily accessible by rail from Altoona. On the night of October 28th the mother of appellee died at her residence, and as appellee desired her said sister and brother, who were also children of the mother, to be informed of their mother's death, in order that they might be present with her at the funeral, she telephoned on the night of the 28th to a friend of hers in Altoona, directing him to send telegrams to her brother and sister, informing them of their mother's death, and requesting them to come to her funeral. It appears that appellant keeps no night office at Altoona, and on the next morning, at 7:20 a. m. appellee's agent appeared at the office of appellant in Altoona, and delivered for transmission and delivery two telegrams as follows: "Altoona, Ala. 10/29/07. Billy Jones, Ensley, Route 1. Come if possible. Mother died at eight last night. Emma Snell." "Altoona, Ala. 10/29/07. Annie Harris, Alabama City, Ala. Come if possible. Mother died at eight last night. Emma Snell. Time filed 7:20 a. m. O. K. H/3-3 p. m." City, with the exercise of ordinary diligence, prior to 3 p. m., and, if his day's wage had depended upon the delivery of the message to Annie Harris at her residence in Alabama City on that day, we are inclined to think that he would have exercised more diligence than is shown to have been exercised by the agent of appellant in his efforts to deliver the telegram to her after its receipt by him. Certainly it was a question for the jury to say, under all the evidence, whether, taking into consideration the importance of the message, the agent of appellant, in and about the delivery of the telegram, exercised that reasonable care and diligence which a man of ordinary prudence would have ex son of the delay in the delivery of the message, Annie Harris was not informed of her mother's death until after the funeral, and, not knowing of her death, did not attend the funeral. E. Tenn., Va. & Ga. R. R. Co. v. Bayliss, 74 Ala. 150. The words "Time filed 7:20 a. m." on the Annie Harris telegram meant that the message was received for transmission at 7:20 a. m. at Altoona, and the words "O. K. H/33 p. m." referred to the time when that mes-ercised under similar circumstances. By reasage was received by the agent at Alabama City, as the agent at that place testified that he received it at that hour on that day. At the time the message was delivered for transmission, the agent of the appellant was informed that Billy Jones lived near Ensley on rural free delivery mail route 1, and, when the messages were delivered for transmission, to use the language of the witness who signed the telegrams for appellee: "I told the agent, Mr. Brown, I wanted him to send the telegrams, and, if there was any extra charges, I wanted to pay them as I had been requested so to do. He said, 'All right,' and went to working on the wire. The charge for each message was 25 cents." [1] 1. As Alabama City was only 18 miles from Altoona, it is evident that in the ordinary course of business the telegram to Annie Harris should have reached that place at a much earlier hour of the day than 3 p. m. Why it did not sooner reach there the evidence fails to disclose. When it did reach Alabama City, the agent of appellant, who testified that he did not know where Annie Harris lived, first consulted the pay roll of the Dwight Cotton Mill, which seems to have contained the names of about 1,000 employés. Not finding the name on the pay roll, he went to the commissary of the Dwight Cotton Mill, and made inquiries about her at that place, and learned there nothing of her or of her place of residence. He then went to the post office, and made inquiries there, with the same result. This was the extent of his efforts to locate the woman, and on the next day he mailed her the customary notification card that a telegram was at his office for her. The evidence shows, without conflict, that Annie Harris had been a resident of Alabama City for nine or ten years; that she had a husband and children; and that one of her children was a grown man, who was at that time employed by, and working for, the Dwight Cotton Mill with his name on the pay roll. A messenger, using some primitive method of conveyance, leaving Altoona [2] 2. The law requires a plaintiff in his complaint to state in plain language the facts upon which he relies for his cause of action. In considering the complaint, the words used, unless they possess some peculiar technical meaning, will be given their ordinary import, and strictly technical objections, not going to the merits of the cause of action, will be disregarded. The law is reasonable, and all that it requires of a complaint is that it shall state in plain and simple language a legal cause of action, and inform the defendant as to what is claimed. [3] The third count of the complaint, after setting out the above telegram to Billy Jones, contains the following averment: "That plaintiff paid the defendant charges for sending the said message from Altoona, Ala., to said Billy Jones at Ensley, Ala., route 1; that defendant broke said contract, in that it negligently failed to transmit and deliver said message to said Billy Jones at the address given in said message." Appellant demurred to said count upon the following grounds: "Said count shows that the undertaking of defendant was to transmit and deliver from Altoona, Ala., to route 1, at Ensley Ala., and said count fails to show that said message was not promptly transmitted to route 1, Ensley, Ala." As a matter of pleading, the complaint met every requirement of the law. The appellant undertook to transmit and deliver, by the acceptance of said message, within a reasonable time, the said message to Billy Jones, route 1, Ensley, Ala. Whether, if the proof had shown that the appellant had promptly transmitted the message to Ensley and there promptly delivered it to the United States mails addressed to Billy Jones, route 1, Ensley, Ala., the appellant would thereby have shown that it exercised in and about the delivery of the message to quired of it, is not presented by the pleading | infer from the evidence that appellee was or the evidence in the case. [4] The fact that Billy Jones did not reside in Ensley, but resided on route 1, near Ensley, might have furnished appellant with the right to refuse to accept messages to be delivered to him at that point, but it did not afford it an excuse for violating the express terms of a contract. Western Union Telegraph Co. v. Henderson, 89 Ala. 520, 7 South. 419, 18 Am. St. Rep. 148. [5] 3. There is nothing in the contention of appellant that the court erred in refusing to allow it to give in evidence the fact, if it was a fact, that Annie Harris did not live within the free delivery limits of Alabama City. While the record discloses the fact that the telegrams were sent upon the blanks of appellant, it fails to show that there were any stipulations in the forms used in sending the messages with reference to free delivery limits. In addition to this, the evidence shows that, when the telegrams were delivered to appellant, it was informed as to the importance of the messages, and that appellee was willing to pay all extra charges necessary to their reasonably prompt delivery. Western Union Tel. Co. v. Henderson, 89 Ala. 510, 7 South. 419, 18 Am. St. Rep. 148. denied the comfort of their presence at the time above stated. Western Union Tel. Co. v. Crumpton, 138 Ala. 632, 36 South. 517; Western Union Tel. Co. v. Crowley, 158 Ala. 583, 48 South. 381. [8] 6. There is no conflict among the authorities that mental suffering constitutes an element of recoverable damages for the breach by a telegraph company of a contract to transmit, within a reasonable time, a message from a sister or brother to a sister or brother announcing the death of the mother, and when by reason of such breach, the sister or brother, to whom the telegram is sent, is thereby prevented from attending the funeral and the sender of the telegram is thereby denied the consolation of such brother or sister's presence at the funeral. Western Union Tel. Co. v. Crumpton, supra. [9] 7. The oral charge of a court must be construed as a whole, and a judgment will not be reversed because a separate part of a charge standing alone and unexplained is erroneous, if the charge, construed as a whole, contains a correct statement of the law as applied to the case. While a few of the expressions of the court in its oral charge to the jury in this case, taken separately may have been sub whole, was a correct statement of the law as applied to the facts of the case. Decatur Co. v. Mehaffey, 128 Ala. 242, 29 South. 646. There is no error in the record, and the judgment of the court below is affirmed. Affirmed. On Application for Rehearing. [6] 4. There is nothing in the record tend-ject to hypercriticism, the oral charge, as a ing to show what, if anything, the appellant did to deliver to Billy Jones the telegram addressed to him. It seems to have reached him about six days after it was sent to him from Altoona. When it was received at Ensley the record does not inform us. Neither are we informed as to when it was finally mailed to him. All that we know about the delivery of this telegram is that it was handed to him by his wife at his home on the Monday succeeding his mother's burial; that he had never heard of the telegram prior to that time; and that it indicated that it had been in the mails. It is therefore evident that the jury were authorized to infer that appellant was negligent in the matter of the delivery of said telegram to him. [10] In its application for a rehearing the appellant, among other things, says: "The Court of Appeals overlooked the fact that each count in the complaint failed to claim any actual damages to plaintiff's estate and failed to claim even the price paid for the transmission and delivery of the message, and that, therefore, under the authority of Western Union Telegraph Co. v. Wright, 169 [7] 5. Appellee's mother was buried two Ala. 107 [53 South. 95], the plaintiff was not miles from Altoona on Wednesday afternoon entitled to recover at all for mental ansucceeding her death, and, as appellee's sis-guish." In the opening part of the opinion ter and brother knew nothing of the funeral, in this case, we called attention to the fact appellee was denied the comfort of their presence when her mother was a corpse at her house, and when she was buried. As both the sister and the brother were so situated that, at little expense, they could have attended the funeral of their moth-count of the complaint it is alleged that the er if they had received the messages announcing her death within a reasonable time after their delivery for transmission to appellant, the jury were authorized to infer that they would have done so, and there is nothing in the record indicating that they would or could not have done so. It follows, therefore, that the jury were authorized to that this suit was brought for damages for the breach of two contracts for the transmission and delivery within a reasonable time of two telegrams, one to a sister and the other to a brother of the appellee. In each plaintiff paid the defendant the charges for sending the said messages, and that it broke the contract, in that it negligently failed to transmit and deliver the messages. Under the general claim for damages in each count of the complaint, the amount paid for the messages was recoverable. In the case of the Western Union Tele |