Western Union Telegraph Co. v. Ryan

• Decision Date: 20 October 1921
• Docket Number: 6 Div. 489
• Citation: 206 Ala. 511,90 So. 793
• Parties: WESTERN UNION TELEGRAPH CO. v. RYAN.
• Court: Alabama Supreme Court

90 So. 793

206 Ala. 511

WESTERN UNION TELEGRAPH CO. v. RYAN.

6 Div. 489

Supreme Court of Alabama

Oct. 20, 1921

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action by T.N. Ryan against the Western Union Telegraph Company for damages for negligence or failure to deliver a telegram. Judgment for plaintiff, and the defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911 p. 449. Reversed and remanded.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, H.A. & D.K. Jones of Tuscaloosa, and Francis R. Stark, of New York City, for appellant.

Brown & Ward, of Tuscaloosa, for appellee.

SOMERVILLE J.

In the recent case of W.U.T. Co. v. Barbour, 89 So. 299, we held, upon very deliberate consideration, that when a telegraph company is unable after due diligence to deliver a message to the sendee, the law implies from the contract relation a duty to promptly exercise reasonable diligence in informing the sender of such inability and failure. We are now urged to reconsider that question and to repudiate the doctrine there announced.

We are satisfied, however, with its rationale as well as its sound policy, and now reaffirm it.

The complaint herein, which seeks a recovery for defendant's violation of that duty, is identical with, or substantially like, the complaint in the Barbour Case, supra, which we held to be sufficient against the numerous grounds of demurrer assigned. We therefore hold, without further discussion, that the demurrer herein was properly overruled.

In order to recover under such a complaint, plaintiff was bound to prove, not only the breach of duty complained of, but also its proximate causation of the injuries alleged--i.e., that if the sender had been informed with reasonable promptness of defendant's failure to deliver his telegram to his father-in-law, he could and would have seasonably communicated with him by some other available means, and that he (the father-in-law) could and would have responded to the message by going to the sender's home in time to afford him the consolation and help, the deprivation of which resulted in the mental anguish of which he complains.

The trial court did not err in permitting the sendee, Manderson, to testify that had he gotten the message he could and would have gone to the sender's home at Kellerman. Such testimony has been long since held admissible in that form, and we are not now disposed to reopen the question. W.U.T. Co. v. Heathcoat, 149 Ala. 623, 631, 43 So. 117; W.U.T. Co. v. Benson, 159 Ala. 254, 274, 48 So. 712.

It is insisted for appellant that the evidence does not show that had the sender of the message been promptly notified of nondelivery, he could have procured the presence of...