Western Union Tel. Co. v. Bowman

• Decision Date: 21 July 1904
• Citation: 37 So. 493,141 Ala. 175
• Parties: WESTERN UNION TELEGRAPH CO. v. BOWMAN.
• Court: Alabama Supreme Court

37 So. 493

141 Ala. 175

WESTERN UNION TELEGRAPH CO. v. BOWMAN.

Supreme Court of Alabama

July 21, 1904

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Action by Robert H. Bowman against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Plea 3 referred to in the opinion, and the demurrers to the replication filed thereto, are as follows:

"(3) The defendant, for answer to the first count of the complaint, says: That prior to the sending of the message mentioned in the complaint the defendant company had established a limit within which it undertook to make free delivery of the messages sent over its wires, which limit was a distance of half a mile, or within a radius of half a mile, from its office, at places having the population that Whistler had at the time this message was sent. That upon the printed blank upon which the message was written, and forming a part of and a condition in the contract for sending of every written message it received for transmission, including the one received in this case, was and is the following clause: 'Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance a special charge will be made to cover the cost of such delivery.' That R. H. Bowman, to whom such message was sent, did not live within the said free-delivery limits of the said Whistler office of the defendant company. No consideration was paid or tendered by the plaintiff to the defendant for the delivery of this message beyond the said free-delivery limits, and no notice was given by the sender, nor did the agent of the company who accepted said message at Montgomery, Ala., know that R. H. Bowman, to whom it was addressed, was not living within said free-delivery limits of the Whistler office."

To the third replication the defendant demurred upon the following grounds: "(1) Said replication does not aver that the custom therein set up had been of such long continuance, and was so shown, as to have the force and effect of law. (2) Because it sets up a matter of custom which cannot prevail over the positive contract of the parties. (3) Said replication shows no duty to deliver the telegram beyond the free-delivery limits of defendant's Whistler office." This demurrer was overruled.

The facts, briefly, are these: On the trial of the case it was shown: That a telegram was sent from Montgomery, Ala., by Ed Bowman, the son of the plaintiff, to the plaintiff at Whistler, Ala., and that said telegram was the same as copied in the complaint. That this telegram was sent after Ed Bowman had made investigation in Montgomery about securing a position for his father, the plaintiff, to work. When the plaintiff's son moved to Montgomery, the plaintiff requested him to be on the lookout, and see if he could get him work in Montgomery, and asked him to notify him if he could do so. That the telegram was sent after said Ed Bowman had negotiated with Mr. Janney, the manager of Janney Ironworks, in the city of Montgomery, and was told by said Janney that he could give the plaintiff a job as molder at the foundry. The other facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

The defendant 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 return a verdict for the defendant. (2) If the jury believe the evidence, they will return a verdict for the defendant as to the issue made on the first count in the complaint. (3) If the jury believe the evidence, they will return a verdict for the defendant as to the issue made on the second count in the complaint. (4) If the jury believe the evidence, they will return a verdict for the defendant as to the issue made on the third count in the complaint. (5) If the jury believe the evidence, they will return a verdict for the defendant as to the issue made on the fourth count in the complaint. (6) If the jury believe from the evidence that the plaintiff resided more than one-half a mile from the telegraph office of the defendant company at Whistler, Alabama, they will return a verdict for the defendant. (7) If the jury believe from the evidence that the plaintiff resided more than one-half a mile from the defendant's telegraph office at Whistler, and that the defendant company had not surrendered its legal rights as to the half-mile limit by establishing a custom to deliver telegrams free outside of said half-mile limit, then your verdict must be for the defendant." "(14) The burden rests upon the plaintiff to prove his case as laid in his complaint, and to show by a preponderance of the testimony that by reason of the failure of the defendant to promptly deliver the telegram he lost a permanent employment in Montgomery; and if he has not satisfied you by a preponderance of the testimony that he did on this account lose a permanent employment which was tendered him, he cannot recover in this action." "(v) The court charges the jury that plaintiff has alleged in every count of the complaint but never proved the payment by Ed Bowman of twenty-five cents to defendant for transmission of the message in question, wherefore, the jury ought to find a verdict for the defendant. (w) The court charges the jury that there is no evidence in this cause that plaintiff sought other employment after failing to get a position with Janney & Company, by reason whereof plaintiff cannot in any event recover more than nominal damages, if entitled to recover at all. (x) The court charges the jury that if they believe from the evidence that plaintiff was prevented from obtaining a position with Janney & Company by defendant's failure to deliver the telegram, it was the duty of the plaintiff to seek other employment, so as to save himself from damage so far as practicable; and unless you further believe from the evidence that plaintiff sought other employment with reasonable diligence, he ought not to recover more than nominal damages."

Geo. H Fearons and Fitts, Stontz & Armbrecht, for appellant.

Samuel B. Brown and Leslie B. Sheldon, for appellee.

HARALSON J.

It was admitted on the trial, that the house of the plaintiff at Whistler, the place to which the message to plaintiff was sent, was beyond the free-delivery limit,--the same being over a half mile from the telegraph office.

There were three counts in the complaint, each in case, to recover damages for the failure to deliver a telegraph message, sent by the son and agent of the plaintiff to the latter from Montgomery to Whistler, Ala.

The first count avers, that on account of defendant's negligence in not delivering the message, the plaintiff lost a valuable situation which was...