On the authority of Western Union Telegraph Co. v. Burns,164 Ala. 252, 51 So. 373, the second count of the complaint presented a good cause of action, and was not subject to demurrer.
On the following authorities: McLendon v. W. U. T. Co.,73 So. 120;1 W. U. T. Co. v. Wright, 169 Ala. 104,53 So. 95; W. U. T. Co. v. Waters, 139 Ala. 652, 36 So. 773; Blount v. W. U. T. Co., 126 Ala. 105, 27 So. 779; W. U. T. Co. v. Rowell, 153 Ala. 295, 45 So. 73; W. U. T. Co. v. Krichbaum, 132 Ala. 535, 31 So. 607; W. U. T. Co. v. Blocker, 138 Ala. 484, 35 So. 468; 1 Sedgwick on Damages (8th Ed.) § 361 — we hold that the other counts failing to allege that the plaintiff suffered injury to his reputation, person or estate, the demurrers to counts 3, 4, and 5 were well taken, and should have been sustained, and so also as to counts 6, 7, 8, and 9; but no ruling being shown on the demurrers to these counts, we cannot pass upon them. And the court having charged the jury that recovery of punitive damages could be had under these counts, the overruling of the demurrers to counts 3, 4, and 5 could not be said to be error without injury.
Exemplary damages may be awarded under a count alleging simple negligence if the facts justify it (Sparks v. McCreary,156 Ala. 389, 47 So. 332, 22 L.R.A. [N. S.] 1224; Birmingham Waterworks Co. v. Brooks, 76 So. 5152), but there may be wantonness *Page 421 without negligence, and when wantonness is made the basis of a declaration, the necessary averments as to damage to person, reputation, or estate must be alleged in cases where the suit is by the sendee of a telegram, and a failure to make this allegation renders the count subject to demurrer. For these errors the judgment of the trial court must be reversed, and the cause remanded.
The foregoing rulings on the pleadings render it unnecessary for this court to pass upon the various other questions presented by the record, dependent upon counts to which demurrers must be sustained, as such questions will probably not be presented on another trial.
There are certain objections to testimony made the basis of assignment of error, based on a failure of proof of the death and burial of the plaintiff's brother. Of course, these facts must be shown by competent evidence and by witnesses who know the facts. Mere guesses or conclusions will not suffice. Witnesses should not be permitted to testify to conclusions, but their testimony must be confined to facts alone, from which the jury must draw the conclusions. This rule applies also to proof of the schedules of the trains by which plaintiff would likely have been transported from his home to the place of burial.
The witness Bradley, the manager of defendant's Greenville office, from which the telegram the basis of this suit is claimed to have been sent, testified that he knew and recognized the signature or R.F. Williams, the sender of the message, to whom a message from Sewanee was delivered, and that "this is the paper, and that is Mr. Williams' signature on it, and I know it." This delivery sheet showed on its face that the message from Sewanee was delivered at Greenville to Williams at 3:43 o'clock p. m. Williams had testified that he had filed the message the basis of this suit for transmission at or before 2 o'clock, and all of the testimony was to the effect that the message the basis of this suit was not filed until after the message from Sewanee had been received. The court on motion excluded this delivery sheet, over the objection and exception of the defendant. This evidence was material in corroboration of Bradley, who testified for the defendant that he accepted the message the basis of this suit at 4 o'clock p. m. It was also admissible as tending to contradict the plaintiff's testimony to the effect that he filed the message at 2 o'clock p. m. In granting this motion, the trial court committed error.
The court did not commit error in refusing to give the general affirmative charge for the defendant. It was a question for the jury under all the evidence to say whether or not plaintiff was entitled to recover under count 2 of the complaint, and in case of a recovery, to fix the damages to which he was entitled. It is unnecessary, we think, to specifically pass upon each assignment of error on the evidence, as an adherence to the general rules above set out will be a sufficient guide for the court on another trial.
Reversed and remanded.
1 15 Ala. App. 230.
2 Ante, p. 209.