Western Union Telegraph Co. v. Jackson Lumber Co.

• Citation: 65 So. 962,187 Ala. 629
• Decision Date: 14 May 1914
• Docket Number: 524
• Parties: WESTERN UNION TELEGRAPH CO. v. JACKSON LUMBER CO.
• Court: Supreme Court of Alabama

65 So. 962

187 Ala. 629

WESTERN UNION TELEGRAPH CO. v. JACKSON LUMBER CO.

No. 524

Supreme Court of Alabama

May 14, 1914

Rehearing Denied June 24, 1914

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Action by the Jackson Lumber Company against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See also, 7 Ala.App. 644, 62 So. 266.

George H. Fearons, of New York City, and Rushton, Williams &amp Crenshaw, of Montgomery, for appellant.

W.O Mulkey, of Geneva, for appellee.

DE GRAFFENRIED, J.

The damages which, necessarily, resulted to the sender and the sendee of the telegram, were the cost of the telegram and the actual sum of the separate losses which were sustained by the sender and sendee of the telegram, because of the error which was committed by the telegraph company in transmitting the telegram. This was the exact amount which the plaintiff claimed in its complaint, and seems to have been the exact amount which the plaintiff recovered of the defendant in this suit. The damages which resulted separately to the sender and sendee of the telegram were, of course, determined by the value of the machinery at Lockhart on the day it was received at that point. The extent of the liability of the telegraph company to the sender and the sendee was also determined by the value of the machinery at Lockhart on the day it was received at that point. If the sender of the telegram had rejected the machinery on the day it was received at Lockhart, the telegraph company, it is admitted, would have been liable to the sender of the message for the cost of the message. It would, also, have been liable to the sendee of the message for the difference between the amount which the sender had agreed to pay for the machinery, and the value of the machinery at Lockhart on the day it was received there. Western Union Telegraph Co. v. Anniston Cordage Co., 6 Ala.App. 361, 59 So. 757; Western Union Telegraph Co v. Brown, 6 Ala.App. 339, 59 So. 329.

1. It was, of course, the duty of the plaintiff, when it discovered that the defendant failed to correctly transmit and deliver the message, in so far as it could, under all the circumstances surrounding it, reasonably do so, to so conduct itself as not to swell, but to minimize, the defendant's losses. Dickerson v. Finley, 158 Ala. 149, 48 So. 548. In the application of this rule the courts hold, however, that:

"Where the conduct of the party injured, in his efforts to extricate himself from loss, does not appear to have been improvident, nor in bad faith, and the loss is shown from such conduct, the burden of proof is upon the author of the wrong to show that the loss might have been mitigated by a different course of conduct, which a reasonably prudent man ought to have taken." Pepper v. Western Union Telegraph Co., 87 Tenn. 554, 11 S.W. 783, 4 L.R.A. 660, 10 Am.St.Rep. 669; Western Union Telegraph Co. v. Anniston Cordage Co., supra.

2. The facts in the instant case, in short, are that the plaintiff sent a telegram to the Fairbanks Company, at New Orleans ordering some machinery to be shipped to it at Lockhart, Ala. The telegraph company, in transmitting the message, made an error, and through that error the dimensions of the machinery were materially changed. The Fairbanks Company did not have in stock the machinery called for in the telegram as it was delivered to it in New Orleans, and immediately ordered the machinery mentioned in the telegram to be shipped to the plaintiff from Oneida, N.Y. When the machinery reached Lockhart, it was discovered that it was not the machinery which the plaintiff had ordered, and that this was due to the error which had been committed in transmitting the telegram from Lockhart to New Orleans. Of course, it was not known that the error in transmitting the telegram had been committed, until the machinery reached Lockhart. The machinery was of unusual size and was practically worthless at Lockhart. The makers of the machinery in Oneida, N.Y., had shipped the machinery which the Fairbanks Company had ordered them to ship, and therefore the Fairbanks Company was plainly liable to the makers of the machinery in Oneida, N.Y., for the purchase price of the machinery. The machinery was not what the plaintiff ordered, and when it reached Lockhart the plaintiff might have rejected it. Western Union Telegraph Co. v. Anniston Cordage Co., supra. The machinery was, as already stated, practically of no value at Lockhart, and if the plaintiff had rejected the machinery there would, in all human probability, have been two suits growing out of this matter against the telegraph company. One of those suits would have been brought by the plaintiff against the defendant for the damages which it had sustained by reason...