Western Union Telegraph Co. v. Saunders
| Decision Date | 21 December 1909 |
| Citation | 51 So. 176,164 Ala. 234 |
| Parties | WESTERN UNION TELEGRAPH CO. v. SAUNDERS. |
| Court | Alabama Supreme Court |
Appeal from City Court of Birmingham; C. C. Nesmith, Judge.
Action by K. D. Saunders against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Complaint was as follows: "Plaintiff claims of defendant $1,999.99 as damages, for that heretofore, to wit, on the 12th day of September, 1905, defendant was in the business of transmitting by wire from Birmingham, Alabama, to Ft. Payne Alabama, and there delivering, telegraphic messages; that on said date plaintiff delivered to the defendant, at said Birmingham, a message addressed to Mrs. G. B. Cross, which message defendant received at said Birmingham, and for hire and reward paid by plaintiff agreed to use due diligence to promptly transmit and deliver said telegraphic message to Mrs. Cross at Ft. Payne, Alabama, which message read as follows: 'Baby worse, come at once;' that it became and was the duty of defendant to use due diligence to promptly transmit and deliver said message to said Mrs Cross, but, notwithstanding said duty, defendant so negligently conducted itself in that regard that said message was not delivered for a long time, to wit, for several hours and as a proximate consequence thereof said Mrs. Cross, who was the mother of plaintiff's wife, and the grandmother of plaintiff's baby mentioned in said message, failed to come to Birmingham for a long time thereafter, and failed to be with plaintiff and his family for a long time during the serious sickness of said baby, and plaintiff's said baby being very sick, and himself and wife greatly worried and anxious about said baby, plaintiff suffered great mental pain and anxiety on account of the absence of said Mrs. Cross, and lost the sum of money, to wit, 25 cents, paid to the defendant for the transmission and delivery of said telegram, all to plaintiff's damage," etc.
The demurrers to the complaint are as follows:
The third plea referred to is as follows:
The demurrers to this plea are sufficiently set out in the opinion.
Campbell & Johnson, for appellant.
Bowman, Harsh & Beddow, for appellee.
There are 52 assignments of error in this record. The first assignment is to the overruling of defendant's demurrer to the complaint. The appellant contends in his brief, in arguing this proposition, first, that "the averment that the plaintiff lost the amount paid for the transmission and delivery of the message is contradicted on the face of the complaint." We do not think that the complaint is subject to this criticism. A person may recover damages for undue delay in transmitting and delivering a telegram, caused by the negligence of the company undertaking the transmission and delivery of the message for hire and reward paid by him, although the message may, after damage has been sustained, be delivered. In other words, the defendant cannot be allowed to say, after undue delay in transmitting and delivering, caused by its negligence, from which damage resulted, "I did finally deliver the message, and therefore you have not lost the consideration paid." If the contract was to deliver promptly, or if the law imposed the duty of delivering promptly, a delivery after undue delay is not a compliance; and if the undue delay is caused by the negligence of the company undertaking the transmission and delivery, and damage to the person, reputation, or estate of the party contracting with such company results as a proximate result thereof, such party may recover for such actual injury, and also in a proper case for injury to feelings. W. U. Tel. Co. v. Westmoreland, 150 Ala. 654, 43 So. 790; W. U. Tel. Co. v. Wilson, 93 Ala. 34, 9 So. 414, 30 Am. St. Rep. 23.
The second contention of appellant with reference to the demurrer to complaint is that the facts averred are insufficient to establish negligence which could proximately result in the damages claimed. As said by McClellan, C.J., in the case of Postal Tel. Co. v. Jones, 133 Ala. 225, 226, 32 So. 502: --citing numerous authorities.
The second assignment of error by appellant is to the ruling of the court in sustaining demurrer to third plea. There are eight grounds of demurrer. The first three grounds are clearly not good, for the reason that the plea must be read in the light of the complaint, and, so reading it, the allegations are sufficient to show that plaintiff was a party to the written telegram. In other words, the complaint does not state whether the telegram was verbal or in writing, but does state that the plaintiff sent it. The plea states that the message sued on was in writing, etc. The message sued on was a message alleged in the complaint to have been sent by plaintiff, and said plea must be construed as confessing that it was. That the plea is not subject to the fourth ground of demurrer needs no argument, as it is clearly not a conclusion of the pleader, but sets up facts. Ground 4a is probably not what the plaintiff intended to say, but, as it is, it is clearly not a good ground of demurrer, as the matters therein alleged could not have been a consequence of defendant's failure to deliver said telegram, and it would be immaterial if they were. Ground 4b is not good, for the reason that the message and the contract for sending same are alleged in the plea to be in writing. If this is so, the plaintiff was charged with notice of what the contract contained. The fifth ground was a general demurrer, and could not be considered.
In considering the sixth ground of demurrer, it is proper to state the said plea sets up three several defenses, as follows, after first setting up, by way of inducement, the terms of the written contract upon which defendant undertook to send said message: (1) That said message was not ordered to be repeated; (2) that said message was not insured, within the meaning of the provisions of the written contract; (3) that said message was in fact delivered to the said sendee in less than two hours after its receipt for transmission. The sixth ground of demurrer was directed to the last defense set up, and was as follows: "For that the fact set up in said plea, 'that said message was in fact delivered in less than two hours,' does not necessarily as matter of law show due diligence." This plea at common law would have been subject to special demurrer for duplicity, but not so under our system. Cannon v. Lindsey, 85 Ala. 198 3 So. 676, 7 L. R. A. 38; Ewing v. Shaw, 83 Ala. 333, 3 So. 692. Where the plea is double, and one defense set up is good, and the other is bad, the plea is not subject to demurrer on account of the bad defense attempted to be set up. A motion to strike out the imperfect part is the proper practice. Bolling & Sons v. McKenzie, 89 Ala. 476, 7 So. 658. But where the plea is double, and each several defense attempted to be set up therein is imperfect, and the ground of demurrer is directed to only one defense set up in the plea, can the court properly sustain the demurrer? The entire court, with the exception of Justice ANDERSON and the writer of this opinion, are of opinion that in such a case it is proper to sustain the demurrer; and therefore this court holds that the lower court was without error in sustaining the demurrer to plea 3, on the sixth ground thereof. It needs no argument to show that a negligent delay in the transmission and delivery of a telegram for two hours might work great damage, for which the company undertaking to transmit and deliver same might be held liable. It is equally true that the other two defenses set up could not stand the test of a proper demurrer, for...
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