Western Union Telegraph Co. v. Louisell

• Decision Date: 10 June 1909
• Citation: 161 Ala. 231,50 So. 87
• Parties: WESTERN UNION TELEGRAPH CO. v. LOUISELL.
• Court: Alabama Supreme Court

50 So. 87

161 Ala. 231

WESTERN UNION TELEGRAPH CO. v. LOUISELL.

Supreme Court of Alabama

June 10, 1909

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by William H. Louisell against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Fitts Leith & Leigh, for appellant.

Gregory L. & H. T. Smith, for appellee.

MAYFIELD J.

The appellee brought suit in the lower court to recover damages for the negligence of the defendant telegraph company in erroneously transmitting a certain telegram, which was alleged to be in words and figures as follows "Manistee, Alabama, May 17th, 1905. City Bank & Trust Company, Mobile, Alabama. Decline payment James J. Manson for two hundred fifty dollars unless advised further by me. William H. Louisell." The negligence alleged was that the name of James J. Manson was erroneously changed in the telegram, as delivered, to James T. Manison; and it was further alleged that, by reason of this error, the City Bank & Trust Company was misled as to the draft which the plaintiff intended to revoke, and paid said draft and charged the same to the plaintiff's account.

The first count of the complaint was subsequently amended, over the protest and against the objection of the defendant, by striking out the word "Manistee," where the same occurs, and inserting in lieu thereof the word "Repton." The second count, filed on the 29th day of May, 1907, was identical with the first count as last amended. The amendment, by adding the second count, was also made over the protest and against the objection and exception of the defendant. We do not think that this constituted a departure, nor do we see any objection to the allowance of the amendment.

The defendant filed a demurrer to the original complaint, which was overruled, and then filed the plea of the general issue and a great number of special pleas, to which the plaintiff filed demurrers and made a motion to strike the special pleas. The demurrer was overruled as to some of the pleas and sustained as to the others, and the motion to strike was granted as to some of the special pleas and overruled as to the others. To these special pleas as to which the demurrer and motion to strike were overruled the plaintiff filed replications. To these replications the defendant filed rejoinders, to which rejoinders the plaintiff demurred. This demurrer being overruled, the plaintiff filed surrejoinders on the 5th day of December, 1906. To these surrejoinders defendant on the 10th day of December, 1906, filed a rebutter; and on the 17th day of December, 1906, the court granted the motion allowing the plaintiff to withdraw surrejoinders, and set aside a former order overruling the demurrers to the rejoinders and sustaining such demurrers, to which ruling of the court the defendant excepted, and on the same day the defendant filed a motion to restore the pleadings to where they stood prior to the granting of this order, which motion was overruled. After all these rulings and orders on the 29th day of May, 1907, the plaintiff moved the court to amend his complaint as above set forth by changing the word "Manistee" to "Repton," and by adding count No. 2, which was identical with count No. 1 as amended. This appears to have been upon the very day upon which the trial was had.

It does not appear from the record proper that any pleas were filed to the complaint as last amended. The recital as to the issues upon which the trial was had is as follows: "This day came the parties by their attorneys, and this cause coming on to be heard, and issue having been joined between plaintiff and defendant, thereupon came the jury," etc. So from the record proper it appears that the trial was had upon the general issue to the complaint as last amended. While there were two counts in the complaint, the first count as last amended was identical with the second count added--in fact, considering the evidence in connection with the pleadings, there was no material difference between the original and the amended complaint. While the amended complaint struck out the word "Manistee" and inserted in lieu thereof the word "Repton," yet the evidence shows that the message was sent from Manistee to Repton over a telephone line, and from Repton to Mobile, Ala., over a telegraph line, and that the message, the transaction, the negligent act complained of, the parties, and the time involved, were identical with those in the original complaint. Consequently we can see no possible benefit or injury that either party could derive from the change, other, possibly, than that of preventing a variance between the allegations and the proof. Nor does there appear to be any reason why the rulings of the court upon the amended complaint should have been different from those upon the original complaint; but the pleas were not filed to the amended complaint, and consequently no ruling of the court was invoked as to the amended complaint.

The decisions are not uniform as to the proper practice of refiling demurrers to amended pleadings; but probably the greater number and weight of authority hold that the party who desires the benefit of rulings on pleadings before amendment must refile demurrers to the amended pleadings. See Mayfield's Digest, vol. 3, p. 10, subd. 7, for collection of authorities. If the amendment had wrought any material change, unquestionably the demurrers should have been filed to test the sufficiency of the complaint. Whether or not the defendant waived all adverse rulings upon the pleadings prior to the amendment, by failing to plead over as to the amended complaint or to refile special pleas, it is not necessary for us to decide in this case, for the reason that the case must be reversed upon another ground and one conceded to be the material question in the case.

When all the evidence had been introduced, the court in its oral charge practically directed a verdict for the plaintiff. A part of the oral charge of the court was as follows: "Gentlemen of the jury, in this case the only question before you is the amount of the damages." The defendant excepted to all of the oral charge of the court, upon the ground that when the court gives the general affirmative charge there is no function for oral remarks. It appears from the bill of exceptions that a colloquy, unnecessary to notice, occurred between counsel and the judge. The plaintiff requested the court to give the following charge, which was in writing, to wit: "The court charges the jury that if they believe the evidence they should return a verdict for the plaintiff for $250, with interest thereon from May 21, 1905, to May 29, 1907"--which charge the court gave, and indorsed thereon: "Given. Samuel B. Browne, Judge." The defendant then requested the court to give several written charges, each of which was refused, with the usual indorsement. It is unnecessary to set out these charges, for the same reason that it was unnecessary to pass upon the various rulings of the court upon the pleadings, to wit, because the judgment must be reversed for the giving of the affirmative charge; and we will treat the questions involved, in so far as their discussion will serve to guide the trial court upon another trial, should another trial be had.

There can...