Middleton v. Western Union Telegraph Co.

• Decision Date: 30 June 1916
• Docket Number: 6 Div. 947
• Citation: Middleton v. Western Union Telegraph Co., 197 Ala. 243, 72 So. 548 (Ala. 1916)
• Parties: MIDDLETON v. WESTERN UNION TELEGRAPH CO.
• Court: Alabama Supreme Court

72 So. 548

197 Ala. 243

MIDDLETON v. WESTERN UNION TELEGRAPH CO.

6 Div. 947

Supreme Court of Alabama

June 30, 1916

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by Mrs. H.V. Middleton against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Francis M. Lowe, of Birmingham, for appellant.

Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellee.

SOMERVILLE J.

As the minute entry shows no ruling on demurrers to pleas 3, 4, 5 and 6, we cannot consider the first and second assignments of error which presuppose such a ruling.

The third assignment is that the trial court "erred in sustaining the defendant's demurrers to the plaintiff's replications, 1, 2, 3, and 4 respectively." It is well settled under our practice that the appellant can take nothing under such an assignment if any one of the replications in question was subject to the demurrer directed against it. Brent v. Baldwin, 160 Ala. 635, 49 So. 343; Ryall v. Pearson, 6 Ala.App 363, 59 So. 190. The record does not exhibit replications 3 and 4, and we are unable to determine whether one or both were subject to the defects pointed out. The assignment is therefore not sustained.

But if the assignment were restricted to replications 1 and 2, which appear in the record, the same rule would be fatal to the assignment. Defendant's third plea sets up a provision of the contract which expressly limits the undertaking to a delivery of the telegram within a mile of defendant's terminal office.

Replication 1 avers a custom of defendant to deliver telegrams beyond its free delivery limits, and in the neighborhood of plaintiff's residence in Birmingham, without requiring prepayment of the extra charge prescribed by defendant's rule. This replication was defective in not showing that plaintiff or her agent had knowledge of the custom averred, and that the contract was made with reference thereto; for no local usage can become part of a contract unless it was known to the parties at the time of contracting. Byrd v. Beall, 150 Ala. 122, 43 So. 749, 124 Am.St.Rep. 60; Cole Motor Car Co. v. Tebault, 72 So. 21; W.U.T. Co. v. Bowman, 141 Ala. 175, 192, 37 So. 493.

The trial judge submitted to the jury the determination of the question of plaintiff's husband's agency for her in sending the message, and the question of defendant's negligence vel non in the transmission of the telegram to its Birmingham office. But he instructed the jury, ex mero motu that if plaintiff was at no time within the free delivery limits during the afternoon when the telegram was sent, she could not recover for failure or delay in its delivery after it reached the Birmingham office. Under the pleadings and evidence, this instruction was correct. Apart from the settled rule, that a usage cannot, by implication, nullify the express terms of a contract (Mobile, etc., R. R. Co. v. Bay Shore Lbr. Co., 165 Ala. 610, 51 So. 956; Wilkinson v. Williamson, 76 Ala. 163), there is nothing in the evidence to...