Western Union Telegraph Co. v. Bowen

• Decision Date: 13 November 1917
• Docket Number: 6 Div. 281
• Citation: 76 So. 985,16 Ala.App. 253
• Parties: WESTERN UNION TELEGRAPH CO. v. BOWEN.
• Court: Alabama Court of Appeals

76 So. 985

16 Ala.App. 253

WESTERN UNION TELEGRAPH CO. v. BOWEN.

6 Div. 281

Court of Appeals of Alabama

November 13, 1917

Appeal from City Court of Birmingham; Charles W. Ferguson, Judge.

Action by W.E. Bowen against the Western Union Telegraph Company for damages for a failure to deliver to Bowen's wife money sent her by him through the medium of the telegraph company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellee.

BROWN P.J.

The court directed a verdict for the defendant under the second count of the complaint, and submitted the case to the jury under the first count.

The gravamen of the first count is the failure of the defendant to promptly pay the alleged sum of money to plaintiff's wife, in accordance with the alleged contract between the parties, whereby it expressly undertook, for a consideration paid by the plaintiff, "to use due diligence by telegraphic communication to promptly pay or cause to be paid said sum of $15 to said Mrs. W.E. Bowen at said Citronelle," the complaint alleging:

"And it became and was defendant's duty to do so but notwithstanding said duty defendant failed to pay said sum of money to plaintiff's said wife for a long time, to wit, for two days, and as a proximate consequence thereof plaintiff was greatly worried, harassed, vexed, and annoyed, and suffered great mental and physical pain and anguish, and was put to great trouble, inconvenience, and expense in or about the continued stay of his said wife, daughter, and sons at said Citronelle, and in and about their continued absence from home, and plaintiff lost the said amount paid as hire or reward, to wit, 66 cents. Plaintiff avers that defendant negligently conducted itself in and about paying said money to plaintiff's said wife on the occasion aforesaid, and as a proximate consequence of said negligence the said payment to said wife was delayed as aforesaid, and plaintiff suffered injuries and damage as a proximate consequence thereof."

It is a mistaken idea that an action on the case will not lie for a breach of duty growing out of contract unless the contract relates to a business affected with public interest. The leading case cited by appellant uses, among others, this illustration:

"Take *** the contract of a carpenter to repair a house, partly decayed or otherwise defective. The implications of the contract are that he will bring to the service reasonable skill, good faith, and diligence. If he fail to do the work, or leave it incomplete, the remedy, and the only remedy against him, is ex contractu. Suppose, in the attempted performance, he, by his want of skill or care, destroys, damages, or needlessly wastes the materials furnished him by the hirer; or suppose that in making the needed repairs, he did it so unskillfully as to damage other portions of the house; this is tort, for which the contract furnishes the occasion. The contract is a mere inducement, and the action is on the case." Mobile Life Ins. Co. v. Randall, 74 Ala. 170.

A striking analogy to the case in hand is found in the illustration used in Wilkinson v. Moseley, 18 Ala. 288, where it was said:

"It is often a matter of difficulty to determine whether an action is in form ex contractu or ex delicto. Perhaps the best criterion is this: If the cause of action as stated in the declaration arises from a breach of promise, the action is ex contractu, but if the cause of action arises from a breach of duty, growing out of the contract, it is in form ex delicto and case. For instance, if the declaration alleges the hiring of a horse to ride to a certain place, and that the defendant rode him so immderately that he died, this would be case; for the contract of hiring imposed upon him the duty to ride in reason, or not unreasonably fast; but if the declaration alleges the hiring, and that he promised to ride with reasonable speed, but not regarding his promise, he rode the horse immoderately, whereby he died, the action would be considered assumpsit."

The Supreme Court, referring to and using this illustration in Mobile Life Ins. Co. v. Randall, supra, after quoting the above, remarked:

"We do not doubt that assumpsit would lie in the case last supposed, but case would lie also." 74 Ala. 176.

If it is clear from the whole complaint that it declares as for a breach of the contract, the mere fact that negligence is alleged does not change the character of the action. 1 Corpus Juris, p. 1022, § 144 (C).

If the defendant for a reward expressly undertook to use due diligence by telegraphic communication to promptly pay or cause to be paid to plaintiff's wife a certain sum of money deposited with it, and negligently failed to accomplish this result, as averred in the complaint, it would be liable, whether it maintained a line of telegraph between Birmingham and Citronelle or was engaged in the business of transmitting telegraphic money orders or not, the defendant's obligation and duty springing out of the contract between the parties. W.U.T. Co. v. Hicks, 72 So. 356; Joyce on Electric Law, §§ 763, 980a.

It is not important on this appeal whether the first count declares on a cause of action ex contractu or ex delicto. It shows a loss of the toll paid by the plaintiff for the service the defendant undertook to perform, and other recoverable damages, such as extra expense incident to maintaining plaintiff's wife and children at Citronelle, and the loss of their society, resulting from the alleged default of the defendant, and if in addition to such recoverable damages it claimed nonrecoverable damages, demurrer was not the proper method of purging it of such claim. W.U.T. Co. v. Westmoreland, 150 Ala. 654, 43 So. 790.

By the contract laid in the complaint, the defendant undertook to pay or cause the money to be paid to the plaintiff's wife, and the complaint was subject to demurrer for failing to negative that the defendant caused the money to be paid. However, the demurrer does not reach this defect, and the complaint, though subject to demurrer, is not subject to the objection urged in argument that it does not state a substantial cause of action, and will not sustain the judgment of the court. American Bonding Co. v. Mexican Whiting Co., 11 Ala.App. 587, 66 So. 847; Ex parte State v. Collins (Sup.) 76 So. 445; Code 1907, § 4143.

Defaults of the defendant and negligence of its servants...