American Union Telegraph Co. v. Daughtry

• Decision Date: 15 April 1890
• Citation: 89 Ala. 191,7 So. 660
• Parties: AMERICAN UNION TEL. CO. v. DAUGHTRY.
• Court: Alabama Supreme Court

7 So. 660

89 Ala. 191

AMERICAN UNION TEL. CO. v. DAUGHTRY.

Supreme Court of Alabama

April 15, 1890

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

This action was brought by H. L. Daughtry against the appellant corporation to recover damages for its failure to forward a telegram within a reasonable time, and was commenced on February 4, 1881. The message was sent from Opelika, Ala January 6, 1881, addressed to Lehman Bros., New York, and in these words: "Socket, Daughtry, to cover, bottomed incendiary, bouncer, incarnate." This message was explained to mean, "Sell on account of Daughtry, to cover, 100 June, 200 May," and was an instruction to them (Lehman Bros.) to sell 300 bales of cotton on his account. The message was sent for plaintiff by Renfro Bros but in their own name; and during the trial, as the bill of exceptions shows, on this fact appearing, the court allowed the plaintiffs to amend the summons and complaint by adding the names of the surviving partners of that firm, suing for his use. The defendant objected, and excepted to the allowance of the amendment, and pleaded the statute of limitations of six years to the complaint as amended, to which plea a demurrer was sustained. The complaint contained seven counts, to which a demurrer was interposed, assigning nine grounds or causes of demurrer, which were, in substance (1) that no contract between plaintiff and defendant was shown; (2) that the message was in cipher, and unintelligible, and its meaning was not explained to the receiving operator; (3) that the message was part of a gambling contract, which was illegal and void, no actual sale of cotton being contemplated or intended, but only the payment of the difference in price. The court overruled the demurrer, and the defendant then pleaded (1) the general issue, on which issue was joined; (2) "that the contract made by the defendant with Renfro Bros. was that defendant was not to be liable for damages from any failure to transmit or deliver, or from any error in the transmission or delivery, of an unrepeated message, but, to guard against errors, the company will repeat back any telegram for an extra payment, or one-half of the regular rate, and in that case it is not to be liable for damages beyond fifty times the amount paid for sending and repeating the telegram, and defendant avers that in this case there was not any amount paid for repeating said telegram, and the same was not offered to be sent as a repeated telegram." To this plea the court sustained a demurrer. The defendant also pleaded (3) that the message was in cipher, was not intelligible, and was not explained to the operator; and to this plea, also the court sustained a demurrer.

The telegram was not produced on the trial, but proof of its loss was made as follows: J. H. Purnell, the manager in charge of the Western Union Telegraph Company at Opelika, testified that his company succeeded to the business of the American Union Telegraph Company, in October, 1881, and he had been in charge of the office at Opelika ever since; that all the papers on file when he took charge of the office were sent by him to Mobile, whence, as he afterwards learned, they were shipped to New York, and there sold to a paper-mill, and ground into pulp; that he had never seen said telegram, and did not know that it was among the papers so sent off and destroyed. To the admission of each part of this evidence the defendant objected and excepted. John M. Chilton, plaintiff's attorney, testified, as a witness in plaintiff's behalf, that he did not personally know who was the defendant's operator at Opelika in January, 1881, and he was then asked. "Was the testimony of said operator ever taken by interrogatories in this case?" The defendant objected to this question as calling for illegal and irrelevant testimony, and excepted to the overruling of its objection by the court. The witness then stated "that said testimony was taken by interrogatories; that the operator at that time, Elmore Culp, according to his best recollection, resided at that time in West Point, Ga., and affidavit was made to that effect at the time of filing the interrogatories to him; that he filed the interrogatories to said Culp, and attached to them a copy of the telegram as set out in the complaint; and that said interrogatories, and the testimony of said Culp thereon, had been lost, and could not be found after diligent search." The witness further stated that he "remembered the testimony of said Culp, substantially," and that it was to this effect: "That he was the defendant's operator at Opelika on the 6th January, 1881, and received the original telegram, of which the copy attached to the interrogatories was correct, and forwarded the same by way of Montgomery; that he received from the operator at Montgomery an acknowledgment of the receipt thereof, indicated by the letters 'O K;' that he afterwards tried to trace said telegram, but could not trace it beyond Montgomery." The defendant moved to exclude each and every portion of this testimony from the jury, but the court overruled its motion, refused to exclude the same, and the defendant thereupon duly excepted.

Among the numerous charges requested by the defendant, in writing were the following: "(1) If the jury believe the evidence, they must find for the defendant. (2) If the jury believe the evidence, they cannot find for the plaintiff for more than the price paid for sending the telegram. (3) Under the evidence in this case, Renfro Bros. were not the agents of the plaintiff, but were brokers through whom he made his contracts, to whom he was liable for any loss he sustained, and from whom he was to receive any profits arising from the transaction in cotton with them. (4) Under the evidence in this case, there were no contractual relations between plaintiff and Lehman Bros. They were not his agents or brokers, and owed him no duty to act on his telegram. (6) Under the evidence in this case the right to recover special damages arising from a failure to cover any contracts which plaintiff had on hand on the 6th January, 1881, is barred by the statute of limitations of six...