The first question presented by this record for decision is: Can an action on the case be maintained against a telegraph company, by the sendee of a social telegram announcing the death of his father, for negligent delay in the delivery of the message, with■out the averment of contractual relations between the company and the sendee in respect to the message? The principle involved has been decided against the contention of the appellant (telegraph company) by this court' in the'very recent case of Anniston Cordage Company v. Western Union Telegraph Company, 161 Ala. 216, 49 South. 770. That ivas an action by the sendee of a commercial telegram against the company for negligently ■changing the message before delivery, whereby the sendee was damaged; and it was held that, if it appear that the .sendee was to be benefited by the contract for sending *14the message and that the fact was known to the company when it received the message for transmission, either from the language of the message or otherwise, then the action may be maintained.
In the instant case the message is set out in the complaint, and its wording is such as should have imparted knowledge to the company that it was sent for the benefit of the sendee. Hence the specific averment that it was sent for the benefit- of the sendee was unnecessary. On these considerations the court hold that the demurrer presenting the point under discussion was properly overruled; and upon the same considerations the demurrer to plea 5 was properly sustained.—Anniston Cordage Co. v. Western Union Telegraph Co., supra, and cases cited in the opinion in that case. See, also, Western, etc., Co. v. Allen, 66 Miss. 549, 6 South. 461; Gray on Commun. Tel. § 104, note 3; 21 Am. & Eng. Ency. Pl. & Pr. 509. The cases of Western Union Telegraph Co. v. Wilson, 93 Ala. 32, 9 South. 414, 30 Am. St. Rep. 23, Western, etc., Co. v. Adair, 115 Ala.441, 22 South. 73, Postal, etc., Co. v. Ford, 117 Ala. 672, 23 South. 648, and Ford v. Postal, etc., Co., 124 Ala. 401, 27 South. 409, are cases in assumpsit for breach of contract, and are not in point. In the Ford Case the question at issue was expressly left at large.
The action here_being in case (Western, etc., Co. v. Krichbaum, 132 Ala. 535, 31 South. 607), the further point is made by the demurrer to the complaint -that no recoverable damages for injury to the person, reputation, or estate of the plaintiff are- shown by the averments. of the complaint, and, therefore, that the damages claimed for mental suffering are not recoverable, If the demurrant’s construction of the • complaint is correct, the court erred in overruling the demurrer on this point.—Blount v. Western, etc., Co., 126 Ala. 105, 27 *15South. 779; Western, etc., Co. v. Krichbaum, 132 Ala. 537, 31 South. 607; Western, etc., Co. v. Blocker, 138 Ala. 484, 35 South. 468. While we recognize the principle settled in the cases cited to this point, yet, turning to the complaint, we find that items of damages dre claimed other than for mental suffering; and, being claimed, demurrer is not the proper mode of presenting the question as to whether they are recoverable. True, the cases cited were decided on demurrer to the complaint, but it will be seen, by examining them, that no items of damages were claimed in the complaints, except for mental suffering, and hence the complaints stated no' cause of action.
However, the record shows that at the request of the defendant, the court charged the jury that no recovery could be had for the amount paid at Marion, by the sender, for the transmission of the message, but refused the charge that recovery could not be had for the 75' cents paid the messenger boy, nor for the railroad expenses incurred in going to Marion, and also refused the general affirmative charge requested by the defendant. Confessedly the complaint shows no contractual relation between the defendant in respect to the message, nor between the plaintiff and the sender of the message. But it affirmatively appears from the complaint that the toll for the transmission and delivery of the message was paid by the sender at Marion, Avhence the message was sent; and no facts are alleged which have the slightest tendency toAvards showing that the plaintiff was under any obligation to refund to the sender the amount of the toll paid by him. In this state of the pleadings, it seems clear that the mere averment of the complaint that the plaintiff lost the money paid by the sender to the defendant’s agent at Marion for sending the message falls short of showing a legal claim against the defendant of *16such sort as will entitle the plaintiff to recover for it in this action. Furthermore the allegation is in no wise aided by the proof in this respect. It follows that the court properly charged that no recovery could be had for the amount, paid at Marion by the sender.
So far as the item of railroad expenses incurred by the plaintiff in going to Marion after receiving the message is concerned, it would seem that no argument is necessary to show that it cannot in any sense be said, either upon the averments of the complaint or upon the evidence, nor upon both, that the expenses were incurred. as a proximate consequence of the negligence complained of, and the court erred in submitting it to the jury as recoverable damages.
As to the 75 cents paid the messenger boy for the message, there is testimony tending to show that the boy was authorized to.collect charges plainly written on the message, and that the charges were so written in this instance. Therefore it was a question for the jury to determine whether the 75 cents was authoritatively exacted by the messenger boy before delivering the message. If so, and it was paid, then it was, under our decisions, recoverable actual pecuniary damages, to which damages for mental suffering might be superadded; and the court committed no error in not excluding that item of damages from the jury.
The uncontradicted proof shows that the sender of the message could neither read nor write, and that, at his request, Miss Holt (defendant’s agent at Marion) wrote the message for him, and wrote it on one of the defendandt’s blanks; that he handed her a letter from which to take the address, and she wrote the address: “Willie Jackson, 1802 B. Street.” Under a comparatively late decision of this court, (Western Union Telegraph Co. v. Prevatt, 149 Ala. 617, 43 South. 106), although Miss *17Holt was defendant’s agent for transmitting and receiving messages over the wire, yet in writing the message and address she was the sender’s agent; and the defendant (in the absence of fraud) is not responsible for any mistake made by Miss Holt in writing the message or in deciphering the address from the letter handed to her from which to get the address. In this view it must be held that the court erred in refusing charges 10 and 16, requested by the defendant.
' The evidence is in conflict as to the time at whi eh the message was delivered at the Marion office for transmission to Bessemer — that offered by the plaintiff tending to show that it was about 2 p. m., while that offered by the defendant'tended to show that it was 6:10 p. m. The evidence without conflict shows that the Bessemer office was open from 8 a. m. until 6 p. m., and that about . 50 mi ñutes would have been ample time for the transmission from Marion to Bessemer. Notwithstanding the mistake in the street address of the message it was delivered to the plaintiff; and upon the whole evidence the court is of the opinion that whether or not- the company was guilty of negligence in not delivering the message in time to enable plaintiff to take a train that would put him at Marion in time to attend his father’s funeral was a question for the determination of the jury. In this view the affirmative charge requested by the defendant Avas properly refused.
The testimony without conflict shows that the office hours at the defendant’s Bessemer office were from 8 a. m. ‡0 6 p. m. on Sundays; and according to the defendant’s evidence the message was delivered at the Marion office after 6 p. m., and defendant’s agent notified the sender that it might be delayed on account of the- Sunday-hours at Bessemer. Upon this phase of the case the court should have given charges 2 and 3 requested by *18the defendant.—W. U. Tel. Co. v. Hill, 163 Ala. 18, 50 South. 248.
Eor errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Dowdell, C. J. and Simpson and Mayfield, JJ., concur.