214; Western U. Teleg. Co. v. Mahone, 120 Va. 422, 91 S. E. 157; Western U. Teleg. Co. v. Bolling, 120 Va. 413, 91 S. E. 154, Ann. Cas. 1918C, 1036; Western U. Teleg. Co. v. Bowles, 124 Va. 730, 98 S. E. 645; Western U. Teleg. Co. v. Lee, 174 Ky. 210, 192 S. W. 70, Ann. Cas. 1918C, 1026, 15 N. C. C. A. 1; Taylor v. Western U. Teleg. Co. 199 Mo. App. 624, 204 S. W. 818; Western U. Teleg. Co. v. Kaufman, 62 Okla. 160, 162 Pac. 708; Bateman v. Western U. Teleg. Co. L.R.A.1918A, 803, and note, 174 N. C. 97, 93 S. E. 467; Berg v. Western U. Teleg. Co. 110 S. C. 169, 96 S. E. 248.

Messrs. Foster, Verner, & Rice and Brown & Ward, for appellee:

There is a rebuttable presumption that the agent or employee has performed his duty and informed his principal of every material fact within his knowledge, no matter when or how acquired, which bears upon the subject-matter involved and which may affect the principal's interest with respect thereto.

Blount County Bank v. Harris, 200 Ala. 669, 77 So. 43; Hall & B. Woodworking Mach. Co. v. Haley Furniture & Mfg. Co. L.R.A.1918B, 924, and note, 174 Ala. 190, 56 So. 730; Bluthenthal & Bickart v. Columbia, 175 Ala. 398, 57 So. 814; Green v. Harsh, 204 Ala. 520, 86 So. 392.

Overruling an objection to a question which was not answered is not reversible error.

Alabama G. S. R. Co. v. Frazier, 93 Ala. 45, 30 Am. St. Rep. 28, 9 So. 303, 8 Am. Neg. Cas. 17.

There is a prima facie obligation resting on a telegraph company to make to the addressee actual personal delivery of a telegram without delay, the failure to transmit or deliver raising the presumption of negligence and casting on the defendant the burden of proof of defense of the use by it of due care and diligence in an effort to perform its duty, and the determination of this issue is for the

jury.

Western U. Teleg. Co. v. Houghton, 15 L.R.A. 129, and note, 82 Tex. 561, 27 Am. St. Rep. 918, 17 S. W. 846; Western U. Teleg. Co. v. Hill, 163 Ala. 18, 23 L.R.A. (N.S.) 648, 50 So. 248, 19 Ann. Cas. 1058, 21 Am. Neg. Rep. 1; Western U. Teleg. Co. v. Holland, 11 Ala. App. 510, 66 So. 926; Western U. Teleg. Co. v. Merrill, 144 Ala. 618, 113 Am. St. Rep. 66, 39 So.

121; Western U. Teleg. Co. v. Hicks. 197 Ala. 81, 72 So. 356; Western U. Teleg. Co. v. Whitson, 145 Ala. 426, 41 So. 405; Swan v. Western U. Teleg. Co. 67 L.R.A. 153, and note, 63 C. C. A. 550, 129 Fed. 318; Western U. Teleg. Co. v. Snell, 3 Ala. App. 263, 56 So. 854.

Whether or not a party could and would attend the funeral, etc., is a question for the jury under all the evidence in the case, and the jury may infer such fact from the circumstances.

Western U. Teleg. Co. v. Smith, 189 Ala. 534, 66 So. 578; Western U. Teleg. Co. v. Snell, 3 Ala. App. 263, 56 So. 854.

Upon the receipt by a telegraph company of a message for transmission and delivery, and acceptance of the fee therefor, it becomes its legal duty, in case from any cause it is impossible to transmit the message, or should delay become necessary, to notify the sender of such fact, though the sender has a right to rely on the assumption that the message will be duly transmitted and delivered, and he is under no duty to inquire of the defendant, or otherwise, whether his message was correctly transmitted and received.

Swan v. Western U. Teleg. Co. 67 L.R.A. 153, and note, 63 C. C. A. 550, 129 Fed. 318; Western U. Teleg. Co. v. Holland, 11 Ala. App. 510, 66 So. 926; Western U. Teleg. Co. v. Hill, 163 Ala. 18, 23 L.R.A. (N.S.) 648, 50 So. 248, 19 Ann. Cas. 1058, 21 Am. Neg. Rep. 1; Fleischner v. Pacific Postal Teleg. Cable Co. 55 Fed. 738; Western U. Teleg. Co. v. Bierhaus, 12 Ind. App. 17, 39 N. E. 881; Western U. Teleg. Co. v. Hicks, 197 Ala. 81, 72 So. 356; Lyles v. Western U. Teleg. Co. 77 S. C. 174, 12 L.R.A. (N.S.) 534, 57 S. E. 725; Western U. Teleg. Co. v. Snell, 3 Ala. App. 263, 56 So. 854.

Somerville, J., delivered the opinion of the court:

When a telegraph company accepts a message for transmission and delivery to the sendee, it impliedly undertakes pliedly

duty of

to transmit the Telegraphmessage promptly, corporation and to deliver it promptly

accepting message.

to the sendee after its transmission to the

Our cases have expressed this duty in somewhat variant phraseology. In Daughtery v. American U. Teleg. Co. 75 Ala. 168, 178, 51 Am. Rep. 435, it was said that "messages must be sent in the order of their handing in, without favor or partiality, without delay, and without reference to the value of the interests to be affected."

In Western U. Teleg. Co. v. Henderson, 89 Ala. 510, 517, 18 Am. St. Rep. 148, 7 So. 422, it was said that the company's duty is "to forward the message accurately, and with proper diligence," and "to deliver it with all convenient speed."

In Western U. Teleg. Co. v. Chamblee, 122 Ala. 428, 434, 82 Am. St. Rep. 89, 25 So. 234, the general rule is stated "that a telegraph company, in accepting a message for transmission, is under obligation, by its contract with the sender of the message, to transmit it correctly and without delay."

In Western U. Teleg. Co. v. Merrill, 144 Ala. 618, 622, 113 Am. St. Rep. 66, 39 So. 123, a plea was held demurrable because it did not aver "that the company transmitted the message, or attempted to transmit it, promptly as it contracted to do, and which the law required it to do."

In Western U. Teleg. Co. v. Saunders, 164 Ala. 234, 239, 137 Am. St. Rep. 35, 51 So. 178, it was said: "If the contract was to deliver promptly, or if the law imposed the duty of delivering promptly, a delivery after undue delay is not a compliance."

In Western U. Teleg. Co. v. Hill, 163 Ala. 18, 27, 23 L.R.A. (N.S.) 648, 50 So. 251, 19 Ann. Cas. 1058, 21 Am. Neg. Rep. 1, the duty is thus laid down: "Upon the receipt of the message it is the duty of the telegraph company to transmit it

without delay, and if from any cause it is impossible to transmit the message, or if delay will be necessary, the company should inform the sender. ... Delivery should be made as soon after transmission as practicable. The duty of early delivery is as necessary as the prompt transmission. What constitutes due diligence as to prompt delivery is usually a question for the jury, and usually depends upon the facts of each particular case."

In an action on the contract negligence need not be charged. Western U. Teleg. Co. v. Fuel, 165 Ala. 391, 51 So. 571. The absence of negligence in respect to the failure to promptly and duly transmit and deliver is, however, a legal excuse for such failure, Evidenceand, being defen- burden of proof sive matter, the absence of burden of its proof rests upon the defendant. Western U. Teleg. Co. v. Chamblee, 122 Ala. 428, 434, 82 Am. St. Rep. 89, 25 So. 232; Western U. Teleg. Co. v. Merrill, supra.

negligence.

Count 1 sets up an undertaking "to transmit and deliver the message," and it also alleges facts from which the law implies an obligation to transmit and deliver promptly, telegramthat is, expeditious

Pleadingcomplaint for

negligence in

transmitting

sufficiency.

rule should not apply to implied stipulations and obligations imposed by law, as well as to those which are expressed in the contract.

The first breach charged is that defendant failed to transmit and deliver the message promptly, as it undertook to do. As to this, the count is clearly sufficient, and not subject to demurrer, for the reasons stated in our discussion of count 1, above.

The second breach charged is that defendant negligently and carelessly failed to inform plaintiff of its inability to so transmit and delivera separate and distinct obligation. Assuming for the moment that this breach is not founded upon any -defective state- duty shown, or that ment of portion it is defectively

of claim.

stated as a matter

of good pleading, the count as a whole was not thereby made subject to demurrer. In such a case, the proper practice is to address the demurrer only to the defective assignment; otherwise the demurrer cannot be sustained. Watts v. Sheppard, 2 Ala. 425; 13 C. J. 733, § 868.

But, looking to the merits of the question, we are of the opinion that, in principle, it has been heretofore settled by our decisions adversely to defendant's contention. Western U. Teleg. Co. v. Hill, 163 Ala. 18, 27, 28, 23 L.R.A. (N.S.) 648, 50 So. 248, 19 Ann. Cas. 1058, 21 Am. Neg. Rep. 1; Western U. Teleg. Co. v. Hicks, 197 Ala. 81, 72 So. 356. It is true that those cases related to defendant's inability to transmit the message, due to service conditions. But we are unable to discover any practical or substantial reasons for a difference in the obligation of the company in case of inability to transmit, and of inability to deliver to the sendee after transmission. The sender's ignorance of the fact of nondelivery, to whatever cause the failure may be due and at whatever stage it may become apparent, whether before or after transmission to the terminal point, may be equally injurious

to him in every case, and the injury may be equally preventable or mitigable; and the duty of informing him of the failure imposes no greater burden upon the company in the one case than in the other.

In the case of inability to deliver because the sendee could not be found, it has been held by several courts that it is the duty of the company, in all cases practicable. promptly to inform the sender of the message that it cannot be delivered. Hendricks v. Western U. Teleg. Co. 126 N. C. 304, 78 Am. St. Rep. 658, 35 S. E. 543; note to Swan v. Western U. Teleg. Co. 67 L.R.A. 153, 155. But the question whether or not it is negligence to fail to attempt to notify the sender that the sendee

for jury

telegraph company.

cannot be found, so Trial-question that the message negligence of cannot be delivered, is a question of fact to be determined by the jury. Western U. Teleg. Co. v. Davis, Tex. Civ. App., 51 S. W. 258; id., 24 Tex. Civ. App. 429, 59 S. W. 46. We approve this rule of duty as sound in policy and just in operation, and we think its breach is properly charged in count 3 of the complaint.

The case of Western U. Teleg. Co. v. Henderson, 89 Ala. 510, 18 Am. St. Rep. 148, 7 So. 419, discussed and defined the duty of the company as to making delivery, where the sendee was without the free delivery district, and no provision was made by the sender for delivery outside, in accordance with the company's published rules. There was no question there as to the existence or performance of the consequential duty here under consideration.

The recoverability of damages for the mental suffering of the sender could not be raised by demurrer to the complaint, whether the liabili- Pleadingty of defendant was raising question governed by state damages. or Federal law.

demurrer

of right to

Daughtery v. American U. Teleg. Co. 75 Ala. 168, 51 Am. Rep. 435;

claim.

-plea-failure to answer whole of Georgia, an act of interstate commerce, and governed by the Federal Commerce Act. Such a plea would not have answered the complaints, and would not have been in bar of a recovery for loss of the charge paid the company for the service undertaken. Alexander v. Woodmen of World, 161 Ala. 561, 49 So. 883.

Defendant's evidence showed without dispute that, at the time this message from Tuscaloosa to Wylam was accepted by it for transmission, Atlanta was the established relay point for all messages going out of Tuscaloosa to such points as Ensley and Wylam, and that route of transmission, viz., Atlanta, was uniformly adopted and used at that time, and that Atlanta was the distributing point for the entire Southeast.

Under such conditions the trans

mission of this message was an act of interstate commerce, and was governed exclusive

Commerce

ly by the provisions interstateof the Federal Com- domestic telegram passing merce Act, as through other amended by the Act

state.

of Congress of June 18, 1910 (Comp. Stat. § 8563, 4 Fed. Stat. Anno. 2d ed. p. 337); and damages for mental anguish are accordingly not recoverable. Western U. Teleg. Co. v. Beasley, 205 Ala. 115, 87 So. 858 (wherein this court followed the recent and controlling decision of the Federal Supreme Court in Western U. Teleg. Co. v. Speight, 254 U. S. 17, 65 L. ed. 101, 41 Sup. Ct. Rep. 11, decided October 25, 1920.

The rulings of the trial court as to such damages were not in accord with the rule announced, and the judgment must therefore be reversed and the cause remanded for another trial. We deem it unnecessary to discuss other questions argued by counsel.

Anderson, Ch. J., and McClellan and Thomas, JJ., concur.

Petition for rehearing denied May 19, 1921.

as he had anticipated, and may act accordingly. Failure to give the notice will render the company liable for any damage resulting therefrom. See the cases cited throughout this note.

Thus, in the case of Western U. Teleg. Co. v. Erwin (1912) Tex. Civ. App., 147 S. W. 607, the court stated the rule as follows: "Independent of any special contract, the acceptance of a message for transmission fixes upon a telegraph company the obligation and duty to transmit and make prompt delivery thereof. The public may rely upon this obligation and duty, and assume that an important message will be delivered at

destination within a time reasonably necessary for that purpose. If prompt delivery be impossible because the line is not working or is crowded with other business, or because the sendee cannot be found, or for some other reason a prompt delivery cannot be made, it is the duty of a telegraph company to notify the sender of the impending delay."

So, in Western U. Teleg. Co. v. Hill (1909) 163 Ala. 18, 23 L.R.A. (N.S.) 648, 50 So. 248, 19 Ann. Cas. 1058, 21 Am. Neg. Rep. 1, the court said: "Upon the receipt of the message it is the duty of the telegraph company to transmit it without delay, and if from any cause it is impossible to transmit the message, or if delay will be necessary, the company should inform the sender; certainly so, if the message shows on its face the importance of hasty transmission and delivery."

Some cases hold that the sender must be "promptly" notified of delay in the transmission or delivery of a message. Swan v. Western U. Teleg. Co. (1904) 67 L.R.A. 153, 63 C. C. A. 550, 129 Fed. 318, certiorari denied in (1904) 195 U. S. 628, 49 L. ed. 349, 25 Sup. Ct. Rep. 787; Hendricks V. Western U. Teleg. Co. (1900) 126 N. C. 304, 78 Am. St. Rep. 658, 35 S. E. 543; Green v. Western U. Teleg. Co. (1904) 136 N. C. 506, 49 S. E. 171, 1 Ann. Cas. 358; Carter v. Western U. Teleg. Co. (1906) 141 N. C. 374, 54 S. E. 274; Evans v. Western U. Teleg. Co. (1900)

Tex. Civ. App., 56 S. W. 609. And damages have been allowed for mental anguish resulting from delay. in giving the notification. Green v. Western U. Teleg. Co. (1904) 136 N. C. 506, 49 S. E. 171, 1 Ann. Cas. 358, supra.

In the case of Swan v. Western U. Teleg. Co. (Fed.) supra, an action by the sendee of a message for damages sustained by the failure of the defendant company to give notice to the sender of the delay in sending a message which it had agreed to transmit at once, by which failure the sendee sustained a loss, it was held that it was the duty of the defendant company to notify the sender promptly of its inability to transmit the message without delay.

It has been held that the failure to notify the sender of a delay in the transmission or delivery of a message is, in itself, evidence of negligence. Swan v. Western U. Teleg. Co. (1904) 67 L.R.A. 153, 63 C. C. A. 550, 129 Fed. 318, certiorari denied in (1904) 195 U. S. 628, 49 L. ed. 349, 25 Sup. Ct. Rep. 787; Cogdell v. Western U. Teleg. Co. (1904) 135 N. C. 431, 47 S. E. 490; Carter v. Western U. Teleg. Co. (1906) 141 N. C. 374, 54 S. E. 274; Woods v. Western U. Teleg. Co. (1908) 148 N. C. 1, 128 Am. St. Rep. 581, 61 S. E. 653; Western U. Teleg. Co. v. Hargrove (1896) 14 Tex. Civ. App. 79, 36 S. W. 1077.

In Cogdell v. Western U. Teleg. Co. (1904) 135 N. C. 431, 47 S. E. 490, an action by the sendee of a message for damages suffered by her by the failure of the defendant company to deliver a telegram informing her of her father's death, the court said: "If for any reason it [the company] cannot deliver the message, it becomes its duty to so inform the sender, stating the reason therefor, so that the sender may have the opportunity of supplying the deficiency, whether it be in the address or additional cost of delivery. The failure to notify the sender of such nondelivery is of itself evidence of negligence."

It has, however, been held that the duty of a telegraph company to notify the sender of its inability to send a message is not an absolute one; that at most it can be only a question whether, under all the circumstances, a reasonably prudent person would pursue such a course; and that the necessity and sufficiency of notice are questions for the jury. Faubion v. Western U. Teleg. Co. (1904) 36 Tex. Civ. App. 98, 81 S. W. 56; Western U. Teleg. Co. v. Sorsby (1902) 29 Tex. Civ. App. 345, 69 S. W. 122; Western U. Teleg. Co. v. Davis (1899) Tex. Civ. App. —, 51 S. W. 258.

In Western U. Teleg. Co. v. Sorsby (1902) 29 Tex. Civ. App. 345, 69 S. W. 122, supra, the court said: "It seems to be fairly well settled that if a telegraph company discovers, after accepting a message for transmission, that by reason of the disturbed condition of