McGehee v. Western Union Telegraph Co.

• Decision Date: 26 February 1910
• Citation: 53 So. 205,169 Ala. 109
• Parties: MCGEHEE v. WESTERN UNION TELEGRAPH CO.
• Court: Alabama Supreme Court

53 So. 205

169 Ala. 109

MCGEHEE v. WESTERN UNION TELEGRAPH CO.

Supreme Court of Alabama

February 26, 1910

On Application for Rehearing, June 30, 1910.

Appeal from Circuit Court, Butler County; J. C. Richardson, Judge.

Action by Jacob A. McGehee against the Western Union Telegraph Company for nondelivery of a telegram. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Mayfield J., dissenting in part.

The following are the pleas mentioned in the opinion:

"(2) Defendant says that at the time the alleged message mentioned and set out in the complaint was filed with the defendant for transmission, and for a long time prior thereto, defendant had in force a rule or regulation, which was printed on all of the blanks on which messages handled by the defendant were written, as follows: 'The company will not be liable for damages or statutory penalty in any case where the claim has not been presented in writing within 60 days after the message is filed with the company for transmission.' And defendant avers that said rule or regulation is and was a reasonable one. Defendant avers that the plaintiff failed to comply with said rule or regulation, and did not present in writing within 60 days after the alleged message was filed with the company for transmission any claim for the alleged damages set forth in the complaint.

"(3) For further plea this defendant says that at the time the message set forth and described in the complaint was filed with the defendant company for transmission and delivery and for a long time prior thereto, defendant had in force a rule or regulation that 'the company would not be liable for damages in any case where the claim is not presented in writing within 60 days after the message was filed with the company for transmission,' which said rule or regulation was a reasonable one, and that said rule or regulation was printed in plain language upon the blank upon which the message, alleged to have been delivered to defendant, was delivered, and that, notwithstanding such rule or regulation, the plaintiff did not present to the company in writing within 60 days after the message was filed with the company for transmission any claim for damages alleged to have been suffered by him."

The following demurrers were interposed to these pleas: "(1) No answer to the complaint. (2) The action was ex delicto, and the pleas seek to set up a contract between plaintiff and defendant to excuse defendant of its negligence and wrong complained of. (3) Pleas are insufficient in law. (4) They fail to allege or set out any fact which would excuse defendant of its own wrong and negligence. (5) The law does not require a party injured by the negligence and wrong of another to file any claim for damages within 60 days after the wrong and negligence claimed occurred, and the party committing such wrong and negligence cannot adopt rules and regulations excusing such wrong and negligence. (6) Seeks to set up rules and regulations of defendant to excuse itself of its own wrong and negligence committed in violation of law. (7) Seeks to excuse itself of a violation of a duty imposed upon it by law by rules and regulations governing its own affairs. (8) Seeks to excuse itself as to a violation of a duty imposed upon it by law by showing rules and regulations adopted by it, but fails to allege that the plaintiff agreed to abide by said rules and regulations. (9) It fails to allege that plaintiff was a party to such rules and regulations. (10) Fails to allege that plaintiff knew or was informed of said rules and regulations."

The following replications were filed:

(2) "For answer to plea 2, by way of replication thereto, plaintiff says that printed on the telegram or message which was delivered to the defendant to be transmitted and delivered to the plaintiff was the following regulation: 'This company transmits and delivers messages alone on conditions limiting its liability which have been assented to by the sender of the following message. Errors can be guarded against only by repeating a message back to the sending station for comparison, and the company will not hold itself liable for errors or delays in transmission for delivery of unrepeated messages, beyond the amount of toll paid thereon, nor in any case where the same is not presented in writing within 60 days after the message is filed with the company for transmission.' Plaintiff avers that he was not a party to said agreement, and did not agree to any such rule or regulation, and was not informed that he should file any claim for damages within 60 days from the filing of said message."

3. "Answering plea 3, plaintiff says by way of replication that the rules and regulations set out in said plea as printed on the message delivered to this plaintiff required the sender to file such a claim within 60 days from the filing of the message, and did not require this plaintiff to file such claim; said regulation being as follows: [Here follows the identical regulation set out in replication 2.] And plaintiff was not a party to such agreement, and had no motive nor was informed that he was required to file this claim."

(A) "By way of replication to plea 3, plaintiff says that at the time that said message was delivered to the defendant at Samson, Ala., that the blank upon which said message was written did not contain the rule or regulation of defendant, either printed or written thereon, 'that the company would not be liable for damages in any case when the claim is not presented in writing within 60 days after the message was filed with the company,' and in accepting said message for transmission and delivery no such rule or regulation is a part of its contract to transmit and deliver said telegram, and no duty rested on this plaintiff to file his claim for damages within 60 days from the date said message was filed with the defendant for transmission."

Demurrers were filed as follows: "To replication 2: Because said replication was nothing more than a taking issue on the plea. It does not traverse, or confess and avoid, the plea. Admits that the stipulation or regulation requiring claim to be presented within 60 days was a part and parcel of the agreement under which defendant undertook to transmit and deliver. (4) Because plaintiff was bound by the condition under which defendant undertook the transmission and delivery of the message, whether he assented to same or not. Because the replication purports to answer the entire plea, but answers only a part thereof. To replication 3: Same as 2, with the additional ground that the statement that plaintiff was not required to file such claim within 60 days is a conclusion of the pleader, and because the replication shows on its face that the stipulation was printed on the message when delivered to him, and plaintiff cannot now say that he had no notice thereof. To replication A: Because it was a departure from the complaint. It does not traverse, or confess and avoid, the plea, and does not deny the rule or regulation set out in the plea, or that the message, when delivered to plaintiff, was on a blank on which said rules or regulations were printed."

Powell, Hamilton & Lane, for appellant.

Rushton & Coleman and Frank Stollenwerck, for appellee.

McCLELLAN J.

The action is tort, by the sendee of a telegraphic message. The negligence averred was delay in delivery--nondelivery within a reasonable time and as in duty bound to do. The defendant (appellee) set up, in bar of the recovery sought, the following rule or stipulation: "The company will not be liable for damages or statutory penalties in any case where the claim has not been presented in writing within 60 days after the message is filed with the company for transmission"--it being averred that the claim counted on was not filed as required by the rule or stipulation. The demurrers to these pleas took the point that the rule or stipulation was an element of the contract entered into by the sender for the transmission and delivery of the message and, no relation of agency being averred, as between sender and sendee, in the premises, that, in consequence, the obligations of the contract were not binding on the sendee, who was not a party thereto and did not, as an element of the contract, assent to the stipulation. The court overruled the demurrers, and the plaintiff, replying to the pleas, undertook to set up the facts, in substance, indicated by the ground of demurrer directed, as stated, against the pleas. To these replications demurrers were sustained. From a judgment for defendant, plaintiff appeals, assigning as errors only rulings on demurrers to pleas and replications.

In Adair's Case, 115 Ala. 441, 22 So. 73, it was held that the sendee could not maintain an action for breach of the contract in the transmission and delivery of a telegram unless he (sendee) was "directly or per alium a party to the contract." This doctrine was reaffirmed in Ford's Case, 117 Ala. 672, 23 So. 684. We take "per alium" to mean a relation of agency to which the sendee was the principal. However, it should be noted, as upon the authority of the Ford Case, that a sendee may also maintain an action on the contract where the "motive for the formation" of the contract contemplates the benefit, solely, of the person to whom the message is addressed. This latter announcement has been recently reaffirmed in Adams' Case, 154 Ala. 657, 46 So. 228, among others of our decisions.

Unless the sendee is in one of the three classes mentioned in the Adair and Ford Cases, and later decisions following in their wake, the sendee cannot maintain an action ex contractu because he is not a party or privy to the contract. Heathcoat's Case, 156 Ala. 339, 47 So. 139; Ford's Case, 117...