ject to the demurrer which was sustained to same: Whatley v. Zenida Coal Co., 122 Ala. 118, 26 South. 124. The case of Jackson Co. v. Cunningham, 141 Ala. 206, 37 South. 445, is not in conflict with the present holding. There the court construed the complaint as charging a defect in the track, and which specified or designated the ways, works or plant. Here there is no attempt to specify or designate.

Counts 5, 6, 7, 8 and 9 evidently attempted to state a cause of action under section 1019 of the Code of 1907, for a failure to supply oil, bandages, etc. The mine described in the case at bar is an iron mine, and not a coal mine; but conceding, without deciding, that chapter 30 does not apply exclusively to coal mines, section 1019 is intended for the protection of employés engaged at a mine, and not persons who are not so employed: Wolf v. Smith, 149 Ala. 457, 42 South. 824, 9 L. R. A., N. S., 338. Counts 5, 6 and 7 merely aver that the plaintiff's intestate was working in the mine, and do not show that he was an employé, and the trial court did not err in sustaining the demurrers to these counts.

129 Counts 8 and 9 aver that the plaintiff's intestate was working in the mine, and while in the discharge of his duty, etc. But if this showed that he was an employé, which we do not decide, these counts failed to state a cause of action. The counts do not aver that the acts or omissions caused the death of the intestate, but that they merely aggravated or intensified his pain and suffering. This cause of action did not survive, and a suit for the matters complained of and the result of same could not be maintained by a personal representative. Sections 2486 and 3912 give the personal representative the right to sue only for acts and omissions causing death, and not for those merely causing pain and suffering. The demurrers to counts 8 and 9 were properly sustained. This case was tried under counts 1, 2 and 4. Counts 1 and 4 are under the common law, and for a failure to provide the intestate with a reasonably safe place in which to do his

There is no proof that an unsafe place was provided, as the place was reasonably safe when the intestate commenced to work. On the other hand, if the condition of the air, which made it necessary to snuff the lamps in order to see, could be ascribed as the proximate cause of the explosion, which we do not decide, then this condition arose from a defect occurring after the intestate went to work in the mine, and not from a failure on the part of the master to provide a safe way in which to perform the work. The only evidence tending to show the cause of the explosion, aside from the inference that the intestate did so himself in handling the caps or permitting his lamp to come in contact therewith, was that the caps were ignited by sparks from the lamp wicks of the miners, produced by snuffing the lamps, and that Am. St. Rep., Vol. 137-3

said snuffing was made necessary in order for them to see, owing to 180 the condition of the air, and which said condition of the air was due to a defect in the air-shaft.

The evidence shows that there was an air-shaft, that it was good and sufficient when the intestate started to work, and that it became defective after the intestate had commenced work. The master is under the duty of using ordinary care to furnish the employé with place, ways and appliances reasonably safe for use; but by the law, as it has been recognized by this court, the duty of maintaining such safe conditions may be discharged by committing its performance to agents carefully selected for competency and fitness: Woodward Iron Co. v. Cook, 124 Ala. 349, 27 South. 455. The evidence shows that the mine was reasonably safe when the intestate started to work, and that the defect arose afterward, and after the control and supervision of the mine had been delegated to McDuffie. There was, therefore, no proof in support of counts 1 and 4.

Nor was there any proof in support of count 2. It cannot be said, as matter of law, that the placing of caps or dynamite in a mine is negligence, and there was no proof that these were negligently placed where they were. Neither can negligence be imputed to the defendants, under the doctrine of res ipsa loquitur, especially when considered with the evidence connected with and surrounding the explosion. The trial court did not err in giving the general charge for the defendant.

Since the plaintiff failed to establish his complaint, the defendant was not put to a defense of the action, and the action of the court in overruling demurrers to the plea of contributory negligence, if error, and which we do not decide, was error without injury.

The judgment of the city court is affirmed.

McClellan, Sayre and Evans, JJ., concur.

The Duty of a Master to Furnish His Employés a Safe Place to Work cannot be delegated: Vickers v. Kanawha etc. R. R. Co., 64 W. Va. 474, 131 Am. St. Rep. 929; Bernheimer Bros. v. Bager, 108 Md. 551, 129 Am. St. Rep. 458, and cases cited in the cross-reference note thereto. Moreover, the duty is a continuing one, and to discharge it in the first instance is not sufficient to exonerate him: See the note to Houston etc. Ry. Co. v. De Walt, 97 Am. St. Rep. 886; Columbia Enameling etc. Co. v. Burke, 37 Ind. App. 518, 117 Am. St. Rep. 337; Barto v. Iowa Tel. Co., 126 Iowa, 241, 106 Am. St. Rep. 347. And the rule which requires the master to furnish a safe place to work applies, although the servant is employed in constantly producing changes and temporary conditions, as in mining, for the time being more or less dangerous, if the servant has no part in producing the condition which leads to his injury: Superior Coal etc. Co. v. Kaiser, 229 Ill. 29, 120 Am. St. Rep. 233.

The Duty of Mine Owners to Prevent Injury to Their Employés is the subject of a note to Wellston Coal Co. v. Smith, 87 Am. St. Rep. 557.

WESTERN UNION TELEGRAPH COMPANY v. SAUNDERS.

[164 Ala. 234, 51 South. 176.]

TELEGRAPH COMPANY-Delayed Delivery of Message.-One may recover damages for undue delay in transmitting and delivering a telegram, caused by the negligence of the company, although the message may, after the damage has been sustained, be delivered. (p. 37.)

TELEGRAPH COMPANY-Delayed Delivery of Message.— The delivery of a telegram after undue delay is not a compliance with the contract or the law requiring prompt delivery. And if the delay is caused by the negligence of the company, and damage to the person, reputation or estate of the party contracting with the company follows as a proximate result thereof, he may recover for such actual injury, and also in a proper case for injury to feelings. (p. 37.)

NEGLIGENCE-Allegation in General Terms.-The duty of exercising due care being shown, the failure to perform that duty, the negligence causing the injuries complained of, may be averred in the most general terms, little if at all short of the mere conclusions of the pleader, since if the defendant has been guilty of negligence he knows as well or better than the plaintiff in what it consists. (p. 38.)

TELEGRAPH COMPANY-Allegation That Plaintiff was Party to Telegram. Where the complaint in an action against a telegraph company for undue delay in delivering a message does not state whether the telegram was verbal or in writing, but does state that the plaintiff sent it, and the plea states that the message was in writing, the plea must be read in the light of the complaint, and thus the allegations are sufficient to show that the plaintiff was a party to the written telegram. (p. 38.)

TELEGRAPH COMPANY-Notice of Contents of Contract.Where a message and the contract for sending it are in writing, the sender is charged with notice of what the contract contains. (p. 39.)

PLEADING.-Where a Plea is Double, and One Defense set up is good and the other bad, the plea is not subject to demurrer on account of the bad defense. A motion to strike out the imperfect part is the proper practice. (p. 39.)

PLEADING.-Where a Plea is Double and Each Several Defense set up is imperfect, and the ground of demurrer is directed to only one of the defenses, it is proper to sustain the demurrer. (p. 39.)

TELEGRAPH COMPANY.-A Negligent Delay in the Transmission and delivery of a telegram for two hours may work damages for which the company is liable, and a plea, in an action for delayed delivery, is insufficient if it simply alleges that the telegram was delivered in less than two hours after receipted for transmission. (p. 39.)

TELEGRAPH COMPANY-Delay Delivered.-A Plea in an Action for negligent delay in the delivery of a telegram, averring that the message was not ordered repeated and was not insured within the meaning of provisions therefor in the written contract, is insufficient in failing to negative negligence of the defendant alleged in the complaint. (p. 40.)

TELEGRAPH COMPANY-Evidence of Telephone Conversation. In an action against a telegraph company by the sender of a message for its negligent delay, the plaintiff may testify that at his

request a third person took up the receiver of a telephone, called a certain number which the plaintiff did not know was the office number of the defendant, and spoke into the telephone the message to be transmitted, if evidence has already been introduced of the delivery to the sendee of a similar message. (p. 41.)

EVIDENCE Judicial Notice of Telegraph Charges.-A court in Alabama takes judicial knowledge of the fact that telegraph companies in that state make twenty-five cents a minimum charge for transmitting and delivering messages the distance from Birmingham to Fort Payne. (p. 41.)

TELEGRAPH COMPANY-Mental Pain.-Where a Child is Ill and the father telegraphs to his wife's mother of the illness and for her to come, the relation between the sender, the sendee, and the child is such as to entitle the sender to damages for mental anguish in case the delivery of the message is negligently delayed. (pp. 41, 42.)

Action by K. D. Saunders against the Western Union Telegraph Company. From a judgment for the plaintiff the defendant appeals. The following is the complaint:

"Plaintiff claims of defendant nineteen hundred and ninetynine dollars and ninety-nine cents as damages, for that heretofore, to wit, on the twelfth day of September, 1905, defendant was in the business of transmitting by wire from Birmingham, Alabama, to Ft. Payne, Alabama, and there delivering, telegraphic messages; that on said date plaintiff delivered to the defendant, at said Birmingham, message

addressed to Mrs. G. B. Cross, which message defendant received at said Birmingham, and for hire and reward paid by plaintiff agreed to use due diligence to promptly transmit and deliver said telegraphic message to Mrs. Cross at Ft. Payne, Alabama, which message read as follows: 'Baby worse, come at once'; that it became and was the duty of defendant to use due diligence to promptly transmit and deliver said message to said Mrs. Cross, but notwithstanding said duty, defendant so negligently conducted itself in that regard that the said message was not delivered for a long time, to wit, for several hours, and as a proximate consequence thereof said Mrs. Cross, who was the mother of plaintiff's wife, and the grandmother of plaintiff's baby mentioned in said message, failed to come to Birmingham for a long time thereafter, and failed to be with plaintiff and his family for a long time during the serious sickness of said baby, and plaintiff's said baby being very sick, and himself and wife greatly worried and anxious about said baby, plaintiff suffered great mental pain and anxiety on account of the absence of said Mrs. Cross, and lost the sum of money, to wit, twenty-five cents, paid to the defendant for the transmission and delivery of said telegram, all to plaintiff's damage," etc.

The following demurrers to the complaint were filed: "(1) It does not appear that the plaintiff suffered in person or estate by the alleged failure to deliver the telegram. (2) It does not appear that the child referred to in the complaint

died, or that there was any real necessity for the appearance of Mrs. Cross. (3) It does not appear that the defendant was guilty of negligence in failing to deliver the message for several hours after it was filed for transmission. (4) It is not averred or shown that the defendant, in the exercise of reasonable diligence, could have delivered the message sooner. (5) For that it is not averred when the message was delivered."

The following is the third plea: "Defendant avers that the message sued on was in writing, written upon a regular form or blank of defendant immediately following the words, 'Send the following message subject to the terms on the back hereof, which are hereby agreed to.' And defendant avers that on the back of said message, and as part of the alleged contract of transmission and delivery, were the following provisions: [Here follow the printed stipulations and conditions as they appear on the back of the Western Union Telegraph Company's blank for sending messages.] And defendant avers that said message was not ordered to be repeated, nor was same insured, within the meaning of said provision; and defendant further avers that said message sued on was in fact delivered to said sendee in less than two hours after its receipt for transmission."

Campbell & Johnson, for the appellant.

Bowman, Harsh & Beddow, for the appellee.

239 EVANS, J. There are fifty-two assignments of error in this record. The first assignment is to the overruling of defendant's demurrer to the complaint. The appellant contends in his brief, in arguing this proposition, first, that "the averment that the plaintiff lost the amount paid for the transmission and delivery of the message is contradicted on the face of the complaint." We do not think that the complaint is subject to this criticism. A person may recover damages for undue delay in transmitting and delivering a telegram, caused by the negligence of the company undertaking the transmission and delivery of the message for hire and reward paid by him, although the message may, after damage has been sustained, be delivered. In other words, the defendant cannot be allowed to say, after undue delay in transmitting and delivering, caused by its negligence, from which damage resulted, "I did finally deliver the message, and therefore you have not lost the consideration paid." 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; and if the undue delay is caused by the negligence of the company undertaking the transmission and delivery, and damage to the person, reputation or estate of