The plaintiff appellee sued to recover damages sustained in consequence of the negligence of the'defendant, in not properly dating at the place of reception a telegram delivered to defendant at Marshall, Texas, for transmission to plaintiff, by “his brother as his agent and for his benefit.” The telegram delivered to defendant, for transmission, read as follows :
“Marshall, Texas, 11-16, 1895.
“To A. J.. Adair, care Iron Works, Anniston, Ala.
“Mother died this morning.
[Signed] W. A. Adair.”
*444The telegram delivered read as follows :
“Received at Anniston 11 — 14, 189 .
Dated Marshall, Tex., 16.
“To A. J. Adair, care Iron Works.
“Mother died this morning.
[Signed] W. A. Adair.”
The plaintiff avers that he was misled by the heading and date, “Received at Anniston 11 — 14,189 ,” that on account of the obscurity of the statement and date “Tex. 16,” he overlooked it, and believed from the dispatch his mother died on the morning of the 14th; that he knew if she had died on the 14th he could not attend her burial, that if he had known that she died on the 16th, the day the telegram was received, he could and would have attended her burial. The plaintiff claims damages for breach of contract and mental suffering. The right to recover for mental suffering was raised both by demurrer to the camplaint, and by instructions requested for the jury. There was no controversy but that the telegram was promptly transmitted and delivered. The damages claimed are based upon the negligence, in not properly dating.the telegram, as stated. The defendant pleaded the general issue, and also contributory negligence .
The contributory negligence as averred in the plea, consisted in plaintiff’s failure or neglect to notice, that the telegram'was dated Marshall, Tex. 16, and could not, therefore, have been received at Anniston on the 14th, as it purported. The plea avers that the exercise of reasonable care on the part of the plaintiff would have led to the discovery of the error inadvertently committed by the defendant in dating the reception of the telegram “11 — 14.”
The cases decided by this court, in which the sendee of the telegram was plaintiff, the complaint showed that the plaintiff either directly or 'per aliv,m was a party to the contract, and the opinions seem to concede the proposition that if such relationship did not exist, an action for the breach of the contract could not be maintained by the sendee.—Daughtery v. American Union, 75 Ala. 168; Western Union Tel. Co. v. Henderson, 89 Ala. 510, 519 ; Ib. v. Wilson, 93 Ala. 32; Ib. v. Cunningham, 99 Ala. 314; Kennon & Bro. v. Western Union Tel. Co., 92 Ala. 399.
*445The complaint in the present case avers that the sender contracted as the agent of the plaintiff with the defendant. We have examined the abstract carefully, and have been unable to discover any evidence tending to sustain this averment of the complaint, nor is there any evidence tending to show a ratification of the contract, except we regard the institution of this suit as such ratification. See authorities supra; West v. Western Union Tel. Co., 39 Kansas, 93, s. c.; 7 Amer. St. Rep. 530, and notes. In view of the pleadings as framed, and all the evidence, the defendant was entitled to the general affirmative charge, and the court’s refusal to so instruct the jury at the request of the defendant was error.
It is earnestly urged by counsel of appellant, that we modify the rule which prevails in this State, that mental suffering may be a proper element for damages in actions of this character. We have considered the cases in which a different rule has been declared, and the argument in support of an adverse conclusion. We believe that we are right upon sound principles of law and justice. The argument, that damages for mental suffering are speculative, metaphysical, unascertainable, &c., and therefore not recoverable, is equally applicable in one' case as another. No court as yet has undertaken to distinguish the characteristics of mental pain, arising from a breach of marriage contract, slander, trespass upon the person, or quare clausum fregit, from mental suffering caused by a breach of duty imposed by law or undertaken by contract for the benefit of others. It may be more or less intense according to the facts and circumstances, but so far as the human mind can apprehend the nature of mental suffering, it is no more metaphysical, speculative, or indefinite, in the one class of cases than in the other. Experience, observation, and reflection have demonstrated to the satisfaction of the judgment, that mental suffering naturally, proximately arises from a breach of marriage contract, from physical injury ; but mental suffering from these causes is not more clearly established, than mental suffering from the death of a husband or mother, or absence from them at the closing hours of life. The real question is, whether the defendant owed a legal duty to the plaintiff, the willful refusal or neglect to perform which will support a cause of action. If the plantiff can maintain an action at all for *446tbe breach of duty, he is entitled to recover the natural and proximate damages caused by the default, according to the manner in which the complaint is framed. If a party, for a valuable consideration paid, agrees to perform a duty for another, and he knows that his failure will result in pecuniary loss or inflict great mental distress, and he willfully or negligently fails to perform his contract, why should he not be required to respond for the consequences of his misconduct? We can perceive of no sound rule of law which will exonerate him. In some of the opinions it is said, the rule of allowing mental suffering as an element of damages, will open the door to “intolerable litigation,” and in others, that it invites and licenses “excessive verdicts.” These arguments are more properly for the legislature than for the courts. We are of opinion, however, that the contrary rule will license “intolerable” negligence, and deprive the injured party of just compensation for the wrong done him. Unless changed by statute, or some reason adduced, which has not yet occurred to us, we adhere to our former decisions, as the better solution of the question.
' The original telegram received at Anniston and delivered to the plaintiff has been certified and sent up for inspection by this court. We are of opinion that under the evidence, the question of contributory negligence, as averred in the plea, presents a question of fact to be determined by the jury. When attention is directed to the heading, “Marshall, Tex. 16,” it is apparant, but the heading, “Received at Anniston 11 — 14, 189 ,” is much more legible and conspicuous. Under the facts in this case, the jury should determine the question of contributory negligence.
For the error pointed out, the case must be reversed.
Reversed and remanded.