Western Union Telegraph Co. v. Padgett

• Decision Date: 13 June 1922
• Docket Number: 3 Div. 416.
• Citation: 18 Ala.App. 575,93 So. 238
• Parties: WESTERN UNION TELEGRAPH CO. v. PADGETT.
• Court: Alabama Court of Appeals

93 So. 238

18 Ala.App. 575

WESTERN UNION TELEGRAPH CO. v. PADGETT.

3 Div. 416.

Court of Appeals of Alabama

June 13, 1922

Appeal from Circuit Court, Escambia County; A. E. Gamble, Judge.

Action by J. M. Padgett against the Western Union Telegraph Company for damages for incorrectly transmitting a message. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Francis R. Stark, of New York City and Rushton & Crenshaw, of Montgomery, for appellant.

Hamilton Page & Caffey, of Brewton, for appellee.

MERRITT J.

The complaint on which trial was had consists of four counts Nos. 2, 4, 5, and 6. In legal effect, counts 2 and 4 are the same. Both counts are ex contractu, based upon an alleged breach of contract by the defendant telegraph company in and about the transmission and delivery of a telegraphic message from the plaintiff's agent at Brewton, Ala., to the plaintiff, who was temporarily at National Stockyards, Ill.; said message reading as follows:

"Mr. Munson was over here says he wants six big mules six to eight years old and two cheap saddle horses."

It is alleged that, as delivered to plaintiff, the message read:

"Mr. Munson was over here says he wants six big mules six to eight years old and twenty cheap saddle horses"

-that in reliance upon said telegram, as delivered to him, plaintiff purchased 20 cheap saddle horses, instead of 2, as had been ordered; and that he was forced to dispose of said horses at a great loss, for which he claims damage.

Count 5 is a count in assumpsit on the common counts, claiming $1,000 due from the defendant by account on, to wit, April 1, 1918. Count 6 claimed $1,000 damages suffered by the plaintiff in and about the sale of 18 saddle horses, said damage being so caused by the failure of the defendant to correctly transmit a telegram, as set out in the first count of the complaint, which was expressly referred to and made a part of count 6; the plaintiff averring in said count 6 that the defendant had agreed to pay said damages so suffered by plaintiff prior to the commencement of the suit.

In addition to the general issue, the defendant filed pleas Nos. 4, 5, 6, A, and B to counts 2 and 4, separately and severally; said pleas setting up in various ways that the telegraphic message described in the complaint was an unrepeated interstate message; that under the defendant's established rules, regulations, tariffs, and classifications, as the same were on file with the Interstate Commerce Commission, the defendant was not liable for mistakes or delays in the transmission or delivery of an unrepeated message beyond the amount received for sending the same; that the amount received for the transmission and delivery of said message was 50 cents-wherefore defendant claimed it was only liable for said sum, with interest thereon. As originally filed, pleas 4, 5, and 6 averred that the message "was in writing on one of the regular forms or blanks used by the defendant." Demurrers having been sustained to these three pleas, the defendant amended them by striking out the words "in writing," and inserting in lieu thereof "written by the agent of the sender thereof." As thus amended, demurrers to pleas 4, 5, and 6 were overruled.

The defendant filed two special pleas, C and D, to counts 5 and 6 of the complaint, separately and severally. In plea C it is alleged that the only transaction the defendant had with the plaintiff on or about the date mentioned in counts 5 and 6 was the sending of a telegram on or about January 16, 1918, by plaintiff's agent to plaintiff, as set out in the first count of the complaint. After averring that said message was an interstate unrepeated message under the defendant's classifications, rules, and tariffs as the same were on file with the Interstate Commerce Commission on the date of the sending of said message, said plea avers:

"That, subsequently to the sending of said message, defendant's agent undertook an investigation of plaintiff's claim for damages on account of an alleged error made in the transmission of said message, and plaintiff's claim is based on an alleged

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