Western Union Tel. Co. v. Crumpton

• Decision Date: 17 December 1903
• Citation: 36 So. 517,138 Ala. 632
• Parties: WESTERN UNION TELEGRAPH CO. v. CRUMPTON. [a1]
• Court: Alabama Supreme Court

36 So. 517

138 Ala. 632

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

Supreme Court of Alabama

December 17, 1903

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

Action by W. C. Crumpton against the Western Union Telegraph Company for defendant's failure to deliver messages. From a judgment in favor of plaintiff for $1,200, defendant appeals. Affirmed.

The two counts of the complaint, as amended, which seek to recover for the failure to deliver the message sent from Birmingham were the first and second counts. In the first count, as amended, the plaintiff sought to recover $900 "for the breach of a contract made by the plaintiff and the defendant on the 23d day of July, 1899, by the averments of which the defendant undertook to transmit and deliver from Birmingham Alabama, to Georgetown, Kentucky," the message which is copied in the opinion. This count then avers that the defendant was engaged in the business of transmitting messages for hire; that the plaintiff paid the defendant the charges for sending said message from Birmingham, Ala., to Georgetown, Ky.; and the count then avers as follows "That said contract was broken by the defendant, in this: that it negligently failed to transmit and deliver to Rev. W. B. Crumpton, at Georgetown, Ky., said message. Plaintiff alleges, had said message been properly transmitted and delivered, that plaintiff would have the opportunity of seeing the dead body of his mother and being present at her funeral, and that, by reason of defendant's failing to transmit and deliver said message, plaintiff was denied the opportunity of seeing the dead body of his mother and being present at her funeral, and, by reason of the negligent failure of duty on the part of the defendant, plaintiff suffered much painful anxiety and mental distress, wherefore plaintiff brings this suit." The second count was substantially the same as the first, except that it did not aver that plaintiff "negligently failed to transmit and deliver" the message, but simply that it "failed to transmit and deliver" said message, and further averred that, "by reason of the failure of duty on the part of defendant, the plaintiff suffered," etc. The third and fourth counts, added to the complaint by amendment, sought to recover $900 damages for the breach of a contract made by the plaintiff and the defendant on the 22d day of July, 1899, by the terms of which the defendant undertook to transmit and deliver from Montgomery, Ala., to Georgetown, Ky., a telegram which is copied in the opinion. In the third count the plaintiff averred that the contract was broken by the defendant, in "that it failed to transmit and deliver to Rev. W. B. Crumpton, at Georgetown, Ky., said message," etc., and then, after averring that, if the message had been properly transmitted and delivered, the plaintiff would have had an opportunity of seeing the body of his dead mother and being present at her funeral, averred that, "by reason of the defendant failing to transmit and deliver said message, plaintiff was denied the opportunity of seeing the dead body of his mother and being present at her funeral and, by reason of the omission of duty on the part of the defendant, plaintiff suffered much painful anxiety and mental distress," wherefore this suit was brought. The fourth count contained substantially the same averments as to the failure to transmit and deliver the message sent from Birmingham as were contained in the first count of the complaint. The defendant demurred to the complaint as amended upon the following grounds: "(1) Said complaint joins an action ex contractu with an action ex delicto in the same count. (2) Said complaint joins in one and the same count allegations of, and claim of damages for, the breach of a contract between plaintiff and defendant, with an allegation of, and claim of damages for, negligently failing to perform a duty required of the defendant by law. (3) There is a misjoinder of counts in said complaint, in that counts 3 and 4 set up a different cause of action from that contained in the original complaint. (4) All of said counts in said complaint are a departure from the original complaint, in that the original complaint was an action ex delicto, and the amended counts are all ex contractu. (5) Said amended counts are so indefinite and uncertain that it is impossible to determine whether the same are ex contractu or ex delicto. (6) Defendant demurs to the third and fourth counts because the same are an entire change of action from the original complaint. (7) Defendant demurs to the whole complaint as amended on the ground that the amounts claimed come within the jurisdiction of the United States Circuit Court, and cannot be so amended after same has been remanded to this court by the said United States Circuit Court."

The facts of the case are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the defendant requested the court to give to the jury the following written charges, and separately excepted to the refusal to give each of them as asked: "(1) If the jury believe the evidence in this case, they must find for the defendant. (2) Under the evidence in this case, the plaintiff cannot recover a sum exceeding the amount the plaintiff paid for the transmission of said telegrams, with the interest to date." "(4) The defendant had a right to establish reasonable office hours, and the office hours at Georgetown, as proved in this case, were reasonable." "(6) Under the evidence in this case, the contracts of sending both messages only bound the defendant to deliver the messages within a reasonable time; and if the jury believe from the evidence that the office hours of the defendant at Georgetown were such that the messages could not have been delivered before 9 o'clock a. m. next day, and that such office hours were reasonable, there was no negligence on the part of the defendant in not forwarding said message to Georgetown prior to that time. (7) Under the evidence in this case, there can be no recovery under the first count of the complaint. (8) Under the evidence in this case, there can be no recovery under the second count of this complaint. (9) Under the evidence in this case, there can be no recovery under the third count of this complaint. (10) Under the evidence in this case, there can be no recovery under the fourth count of this complaint." "(12) Under the evidence in this case, the terms of the contract of sending the messages provided that the same were to be delivered to the addressee within a reasonable time, and it is a question for the jury to say what was a reasonable time. (13) It was not a part of the contracts for transmission of the telegrams, or either of them, that they were to be delivered before seven o'clock next day." "(16) If the jury find from the evidence that a delivery of the telegrams after nine o'clock next day would not have enabled him to see his mother's dead body, or be present at her funeral, then plaintiff cannot recover exceeding the sum paid for transmitting the telegrams, with interest thereon. (17) Unless the jury find from the evidence that the parties, at the time of making the contracts, had in contemplation, or should have had in contemplation from the facts known to them, the fact or probability that a failure to deliver the telegram would result in the plaintiff's being deprived of seeing the dead body of his mother and being present at her funeral, they cannot assess plaintiff's damages at more than the amount paid for the transmission of the telegrams, with interest thereon to date."

George H. Fearons, J. M. Falkner, and Ray Rushton, for appellant.

Lomax, Crum & Weil and Hamilton & Crumpton, for appellee.

SHARPE J.

The complaint in this cause, as originally filed, consisted of two counts, each declaring for a breach of a contract between the plaintiff and defendant for the transmission...