Western Union Telegraph Co. v. Jackson

• Decision Date: 30 June 1909
• Citation: 163 Ala. 9,50 So. 316
• Parties: WESTERN UNION TELEGRAPH CO. v. JACKSON.
• Court: Alabama Supreme Court

50 So. 316

163 Ala. 9

WESTERN UNION TELEGRAPH CO. v. JACKSON.

Supreme Court of Alabama

June 30, 1909

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Willie Jackson against the Western Union Telegraph Company for damages for delay in the delivery of a message. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The complaint was in the following language: (1) "Plaintiff claims of the defendant the sum of $1,000 damages. The plaintiff avers that on, to wit, March 8, 1908, the defendant was engaged in the business of transmitting messages for hire, and that on said date Leonard Blair, who is the uncle of this plaintiff, delivered to defendant's agent to be sent over defendant's telegraph line, the following message, to be delivered to this plaintiff at No. 1802 B street, Bessemer, Ala., which said message is as follows 'Marion, Ala., March 8, 1908. To Willie Jackson (Col.) No. 1802, Bessemer: Your father died this morning at eight o'clock. Come on first train if possible. Answer quick. Leonard Blair.' And plaintiff avers that said message was delivered by his said uncle, said Leonard Blair, and who paid defendant's agent at Marion, Ala., 37 cents for the transmission and delivery of said message to this plaintiff at said address, and the plaintiff avers that on, to wit March 9, 1908, at 3:30 p. m., defendant's agent delivered to plaintiff the said message, but not in time for the plaintiff to attend his father's burial, and on delivering the said message to this plaintiff, the defendant's agent, knowing said message had been paid for by the said Leonard Blair, notwithstanding said payment to transmit and deliver to plaintiff's said message defendant's agent demanded and exacted of plaintiff payment of 75 cents before he was allowed to see or read the contents of said message. Plaintiff avers that, owing to and by reason of the defendant's agent agreeing to transmit and deliver to plaintiff the said message at said address aforesaid, it was and became the duty of defendant to promptly transmit and deliver to plaintiff said message, and the plaintiff avers that the agent of defendant breached said duty to this plaintiff in this: Defendant's agent negligently failed to promptly deliver to plaintiff said message, and as a proximate consequence thereof plaintiff was kept from attending his father's burial, he lost the money paid to defendant, lost the money his uncle, Leonard Blair, paid defendant's agent at Marion, Ala., he made a trip from Bessemer, Ala., to Marion, Ala., after delivery of said message, trying to reach said last-named place to attend the burial of his father, and suffered great mental pain and anxiety of mind, to his damage as aforesaid. Plaintiff avers that he suffered said damages and injuries aforesaid, owing to and as a proximate consequence of the breach of the duty of defendant to this plaintiff in the agent of the defendant negligently failing to promptly deliver to plaintiff said message at said address in Bessemer, Ala." (2) Based on the same allegations of fact, and it is declared that the breach was wanton, willful, or intentional. (3) A practical repetition of 1.

Demurrers were interposed to these counts, raising the points discussed in the opinion relative to the complaint. The defendant filed several pleas, among them plea 5: "Defendant, for further plea to the complaint and to each count thereof, separately and severally says that the sender of said message was not acting as the agent of plaintiff in filing said message for transmission, and that there were no contractual relations between plaintiff and defendant for the transmission and delivery of said alleged message."

The following demurrers were filed to this plea: "(1) The complaint is filed in action of tort, and the plea does not allege any facts which legally obviate or repel the allegations of the complaint. (2) The complaint alleges a breach of duty, and it is immaterial whether the sender was agent of the plaintiff or not, and such plea is no answer to the complaint. (3) The plea does not allege facts which avoid the allegations of the complaint."

The following charges were refused to the defendant: "(2) If you believe the evidence, and you are reasonably satisfied from the evidence that the message sued on by the plaintiff was filed after 6 o'clock, then I charge you that there was no duty on defendant to transmit said message to Bessemer on the night of Sunday, March 8th. (3) If the jury believe from the evidence that the defendant had established reasonable office hours at Bessemer, by which the Bessemer office was closed between 6 p. m. on Sunday, March 8th, and the following morning at 8 a. m., and that plaintiff was prevented from going to Marion by reason of the fact that the message was received at the initial office after the Bessemer office was closed for the night, your verdict must be for the defendant." "(10) I charge you that the defendant would not be responsible for Miss Holt's negligence in writing down the address, however great such negligence may have been." "(16) I charge you that in writing down the message Miss Holt was the agent of the sender, and that plaintiff is bound by any mistakes or inaccuracies in the address there given."

Campbell & Johnson, for appellant.

Pinkney Scott, for appellee.

DENSON J.

The first question presented by this record for decision is: Can an action on the case be maintained against a telegraph company, by the sendee of a social telegram announcing the death of his father, for negligent delay in the delivery of the message, without the averment of contractual relations between the company and the sendee in respect to the message? The principle involved has been decided against the contention of the appellant (telegraph company) by this court in the very recent case of Anniston Cordage Company v. Western Union Telegraph Company (present term) 49 So. 770. That was an action by the sendee of a commercial telegram against the company for negligently changing the message before delivery, whereby the sendee was damaged; and it was held that, if it appear that the sendee was to be benefited by the contract for sending the message and that the fact was known to the company when it received the message for transmission, either from the language of the message or otherwise, then the action may be maintained.

In the instant case the message is set out in the complaint, and its wording is such as should have imparted knowledge to the company that it was sent for the benefit of the sendee. Hence the specific...