Manker v. Western Union Telegraph Co.

• Decision Date: 18 December 1902
• Citation: 34 So. 839,137 Ala. 292
• Parties: MANKER v. WESTERN UNION TELEGRAPH CO. [a1]
• Court: Alabama Supreme Court

34 So. 839

137 Ala. 292

MANKER v. WESTERN UNION TELEGRAPH CO. ^[a1]

Supreme Court of Alabama

December 18, 1902

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Matie E. Manker against the Western Union Telegraph Company. From a judgment for defendant, plaintiff appeals. Reversed.

The plaintiff was the sendee of a message, which was sent to her by her brother, Frank Lash, telling her of the dying condition of her father, and summoning her to his bedside. There was evidence introduced on the part of the plaintiff tending to show that Frank Lash, the sender of the message was acting as agent of the plaintiff, and for her benefit. The facts of the case and the substance of the portions of the court's oral charge to which exceptions were reserved are sufficiently set forth in the opinion. The plaintiff requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: "(1) If the jury believe the evidence they will find for the plaintiff. (2) The court charges the jury that it was not the duty of Frank Lash to inform the defendant company of the fact that in sending the message described in the complaint, if from the evidence you believe that he was acting as the agent of plaintiff, that he was the agent of plaintiff, in order to make the defendant liable to plaintiff in this cause." There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

B. M Allen, for appellant.

Walker Tillman, Campbell & Walker, for appellee.

DOWDELL J.

This was an action by the sendee of a telegraphic message. The complaint contained four counts. A demurrer was sustained to the third and fourth counts for a failure to aver in said counts that the sender of the message acted as the agent, or for the benefit of the plaintiff. The counts were then amended by averring the agency, after which the demurrer, being renewed, was overruled.

The facts averred in the complaint set up a contract between the plaintiff and the defendant, and the plea was non assumpsit, and issue was taken on this plea. Whether the alleged breach was willful or the result of negligence would not change the character of the action from one ex contractu to one ex delicto. Moreover, the parties tried the case, and the trial court so understood it and treated it, as an action ex contractu. The plaintiff, having tried her case on one theory in the court below, will not be permitted, on appeal for the purpose of putting the trial court in error, to try her case on an entirely different theory.

The action being considered as one ex contractu, the only question raised by the assignments of error upon exceptions to parts of the oral charge of the court and on refusal to charge as requested by plaintiff in writing is whether the principal may maintain an action for breach of contract made by the agent, the principal not having been disclosed at the time of the making of the contract. In the cases of Western Union Telegraph Co. v. Allgood, 125 Ala 712, 27 So. 1024, and Lucas v. So. Ry. Co., 122 Ala. 529, 25 So. 219, it was held that an undisclosed principal could not recover damages for breach of contract made by the agent. These cases followed and were based upon expressions contained in Daughtery...