Western Union Tel. Co. v. Seed

• Decision Date: 09 June 1897
• Citation: 22 So. 474,115 Ala. 670
• Parties: WESTERN UNION TEL. CO. v. SEED.
• Court: Alabama Supreme Court

22 So. 474

115 Ala. 670

WESTERN UNION TEL. CO. v. SEED.

Supreme Court of Alabama

June 9, 1897

Appeal from circuit court, Mobile county.

Action by C. C. Seed against the Western Union Telegraph Company for negligent delay in delivering a message to plaintiff. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

On the trial, as shown by the bill of exceptions, the undisputed facts were that plaintiff resided at Greensboro, Ala., but was on a visit to Mobile. In his absence his wife acted as his agent in receiving and forwarding telegrams addressed to him, and this was known to defendant. On leaving home plaintiff gave his wife three addresses in Mobile by which to reach him. On July 3d, while plaintiff was in Mobile, Ala his mother died suddenly at Tuscaloosa, and his father telegraphed this fact to him at Greensboro. Defendant knowing that plaintiff was absent, read this dispatch over the telephone to plaintiff's wife as plaintiff's agent, and she, as plaintiff's agent, instructed defendant to forward the information to plaintiff at Mobile by three separate telegrams-one addressed care of the Southern Hotel, one care of Gregory L. Smith, and one care of H. Minor Friend. These three telegrams were sent consecutively, and were received by defendant at Mobile, each within two or three minutes of the receipt of the others. Plaintiff kept an account with defendant, and all three telegrams were charged to his account, and were subsequently paid for by him. The defendant put all three telegrams in one envelope, addressed it to the care of the Southern Hotel, and delivered them there, although it knew that the offices and dwellings of said Gregory L. Smith and H. Minor Friend were in Mobile, and knew their respective location, and had frequently delivered telegrams to them. Defendant's messenger claimed that before delivering the telegrams at the Southern Hotel he went to the office of Gregory L. Smith, and found it closed, but this was contradicted by several witnesses. Defendant's messenger testified that he asked the clerk of the Southern Hotel if plaintiff was there before delivering the messages, and was told that he was. There was other testimony to the effect that the clerk of the hotel before receiving the telegrams, looked at his register, and saw that plaintiff had settled his bill, and left the hotel and hesitated about receiving the telegram when the proprietor asked if the telegrams were addressed to the care of the hotel, and being told that they were said that they had better receive it then; that plaintiff had not left the city, and would probably be back; and that all of this was said in the presence of the messenger. It was not claimed that any effort was made to deliver either telegram to H Minor Friend, or at the residence of Gregory L. Smith. On the evening of July 3d, plaintiff had given up his room at the Southern Hotel, and gone to the residence of Gregory L Smith. He spent the night there and went the next morning to visit H. Minor Friend. On the evening of the 4th he went to the Southern Hotel, and the three telegrams were handed him. He at once commenced telegraphing to have his mother's funeral postponed until he could arrive, and made strenuous efforts to get a special train in order to reach Tuscaloosa in time for the funeral, but failed to do so. He offered to release the defendant from all claim if they would arrange it so he could reach Tuscaloosa before his mother was buried, but it declined to entertain the proposition, and plaintiff arrived in Tuscaloosa after his mother was buried. Had the defendant delivered at its address either the telegram addressed care of Gregory L. Smith or the one addressed care of H. Minor Friend, plaintiff could have reached Tuscaloosa in time to be present at his mother's funeral. Plaintiff was raised by his mother, and his relations towards her were of the most affectionate character, and he was in the habit of going to Tuscaloosa twice a week to see her. Upon...