Western Union Telegraph Co. v. Hawkins

• Decision Date: 26 October 1915
• Docket Number: 739
• Citation: 70 So. 12,14 Ala.App. 295
• Parties: WESTERN UNION TELEGRAPH CO. v. HAWKINS.
• Court: Alabama Court of Appeals

70 So. 12

14 Ala.App. 295

WESTERN UNION TELEGRAPH CO. v. HAWKINS.

No. 739

Court of Appeals of Alabama

October 26, 1915

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by Weaver Hawkins against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Forney Johnston, and W.R.C. Cocke, both of Birmingham, and George H Fearons, of New York City, for appellant.

Burgin Jenkins & Brown, of Birmingham, for appellee.

THOMAS J.

In an action against a telegraph company by the sendee of a message seeking damages for delay in the transmission of the message that is, for non-delivery within a reasonable time, the complaint, whether ex contractu or ex delicto, must, in order to withstand attack against appropriate demurrer, allege or show a consideration for the telegraph company's promise or undertaking to transmit the message; otherwise, under the rule that pleadings are construed most strongly against the pleader, it will be presumed that the undertaking or promise on the part of the company was entirely voluntary or gratuitous, for a breach of which no action would lie, either in contract or in tort, since a consideration is essential to a binding contract, without which the one action (the action ex contractu) could not be maintained, and since a binding contract is essential to the imposition of a duty to transmit it, without which the other action (an action ex delicto) could not be maintained. Newton et al. v. Brook, 134 Ala. 269, 32 So. 722; Birmingham Ry., L. & P. Co. v. Abbott, 6 Ala.App. 643, 60 So. 970.

And where, in case of such delay, the sendee sues ex contractu instead of ex delicto, it is not only essential that he allege and show a contract, as said, either express or implied, on the part of the telegraph company to transmit the message, that is a promise on their part to do so upon the faith of a valid consideration paid or promised at the time, but it is also essential that he by appropriate allegations connect himself with that contract as a party, either directly or through another as his agent, unless it appears from the allegations of the complaint that the message was sent solely for the benefit of the sendee. Western Union Tel. Co. v. Adams, 154 Ala. 657, 46 So. 228; McGehee v. Western Union Tel. Co., 169 Ala. 109, 53 So. 205, Ann.Cas.1912B, 512; Western Union Tel. Co. v. Brown, 6 Ala.App. 339, 59 So. 329. If the action is ex delicto, a mere beneficiary--though he be not the sole beneficiary and though he be not a party, either directly or per alium, to the contract of transmission--may, under certain circumstances, sue; but in any case the complaint must show a contract for transmission. Western Union Tel. Co. v. Brown, supra, and authorities supra.

Count 2 of the complaint here, which the reporter will set out, fails to show any consideration moving either from the sendee or from the sender, or any other person, to the defendant telegraph company for its promise or undertaking, if any, to transmit the alleged message; hence the count is bad, whether it be treated as ex contractu or ex delicto. Western Union Tel. Co. v. Krichbaum, 132 Ala. 535, 31 So. 607; Newton et al. v. Brook, supra; Birmingham Ry., L. & P. Co. v. Abbott, supra.

And, if treated as a count ex contractu, it is further bad in that it fails to show that the sendee was a party to the contract of transmission, or that the message was sent for his sole benefit. Western Union Tel. Co. v. Adams, supra; McGehee v. Western Union Tel. Co., supra; Western Union Tel. Co. v. Brown, supra.

The demurrer to the count, it is conceded, properly took the points of its defects as mentioned, but it was overruled by the court. After this the plaintiff amended said count by adding thereto, at the end thereof, the following:

"And plaintiff avers that he also lost the sum of 40 cents, paid by him to the defendant for the transmission and delivery of said message, which amount he also claims as damages in said cause."

This amendment, when construed most strongly against the pleader, hardly cures the defect pointed out, in that it fails to show that the 40 cents alleged to have been paid defendant by plaintiff for the transmission of the message was paid or promised at the time defendant promised or undertook the transmission and delivery of the message, and hence fails to show a binding obligation on the part of defendant to transmit and deliver; but, for aught to the contrary appearing from the allegations, the defendant's promise or undertaking was entirely gratuitous or voluntary. If so, no right of action, either ex contractu or ex delicto, could be grounded upon its breach, although the plaintiff, after the message was transmitted and delivered, did pay the defendant 40 cents therefor; for, unless it was, either expressly or impliedly, agreed or understood at the time that defendant promised to transmit the message that the plaintiff, or the sender, was to pay the 40 cents, or other lawful charges therefor, the subsequent payment of them by plaintiff would furnish no consideration in law for defendant's previous promise, but would be merely a gratuitous payment--a payment which plaintiff was not bound to make--for a past service, which was performed by defendant without the payment or promise of the payment of any consideration in return therefor. The allegations should show a contract, that is, that the plaintiff promised or undertook the transmission and delivery of the telegram for a reward, which might be either paid or promised, at the time of defendant's promise or undertaking, and which, so far as the matter of proof is concerned, would be implied from the fact of the acceptance by defendant company of the message for transmission, in the absence of evidence showing that it was to be transmitted and delivered gratuitously.

Whether the defendant waived its right to review the action of the court in overruling the demurrer by a failure to refile it after the mentioned amendment of the count, as is insisted by plaintiff is the case under the rule as laid down by our Supreme Court in Birmingham Ry., L. & P. Co. v. Fox, 174 Ala. 669-670, 56 So. 1013, we need not decide, since this judgment has to be reversed for other reasons, and on another trial of the case the pleadings will probably be amended to meet the defects discussed.

Whether count 2 is ex delicto or ex contractu (a much mooted question), it is also unnecessary to decide, for when on another trial it is so amended, as it probably will be, as to show a contract for the transmission of the message, and that plaintiff was a party to it through the sender as his agent, the count will state a good cause of action. Showing, as in such case it will, that plaintiff is a party to the contract, it will not be necessary to allege, as is insisted by defendant in another ground of its demurrer, that the message was sent solely for plaintiff's benefit, whether the count be regarded as assumpsit for a breach by defendant of the contract, or as in case for a breach of duty growing out of the obligation imposed by the contract.

The defendant urges that the court erred in not permitting it to introduce in evidence a book kept at one of the defendant's offices on the line of transmission, known as the "logbook," wherein is regularly entered by defendant's agent at such office a statement as to the condition of defendant's wires, and which showed, from such statements, that the wires on a part of the line of transmission of the message in question were out of condition on the whole of January 3d and a part of January 4th, the time of delay in the transmission of the message to plaintiff. Whatever be the rule elsewhere on the subject, such a book in the absence of enabling legislation, cannot under principles laid down by our Supreme Court, stand on any higher ground than other memoranda, certainly on no higher ground than books of account before the statute (Code, § 4003), which ground requires certain preliminary proof, as indicated in the authorities below, in order to make them--whether memoranda or books of account--admissible in evidence. Such proof was not offered in this case. 3 Mayf.Dig. 523, § (e) 1; Id. 526, § (e) 4; 2 Ency. of Ev. 600 et seq.; Birmingham Ry., L. & P. Co. v. Seaborn, 168 Ala. 658, 53 So. 241; Jones v. University, 46 Ala. 626; Dismukes v. Folson, 67 Ala. 386; Hancock v. Kelly, 81 Ala. 368, 2 So. 281; St. L. & S.F.R.R. Co. v. Sutton, 169 Ala. 389, 55 So. 989, Ann.Cas.1912B, 366; Tuskaloosa v. Wright, 2 Port. 230. Under some circumstances memoranda and books of account are admissible against interest without such proof, when shown to have been made by the other party, but never in favor of such party, without such preliminary proof as that pointed out in the cases cited. St. Louis & S.F.R.R. Co. v. Sutton, supra; 2 Ency. of Ev. 664.

The defendant assigns and urges as error the giving of a number of designated written charges at the request of plaintiff's counsel. Plaintiff's counsel, while insisting that the charges are not defective in the grave particulars urged by defendant's counsel, yet admit that these charges are misleading and confusing as applied to the facts of this case. They no doubt are, viewing them charitably, but whether more than that, as urged by defendant, we need not decide, since the judgment is to be reversed for other reasons, and the court on another trial can remove all question as to whether the charges are more than misleading and confusing by refusing them in their present form on another trial, which it will be justified in doing, if for no other reason, because they are misleading and confusing.

The defendant requested, which was refused, a charge in writing to the...