Western Union Telegraph Co. v. Barbour

• Citation: 89 So. 299,206 Ala. 129
• Decision Date: 21 April 1921
• Docket Number: 6 Div. 292
• Parties: WESTERN UNION TELEGRAPH CO. v. BARBOUR.
• Court: Supreme Court of Alabama

89 So. 299

206 Ala. 129

WESTERN UNION TELEGRAPH CO. v. BARBOUR.

6 Div. 292

Supreme Court of Alabama

April 21, 1921

Rehearing Denied May 19, 1921

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action by S.D. Barbour, alias Kate, against the Western Union Telegraph Company for damages for failure promptly to deliver a death message. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911 p. 449, § 6. Reversed and remanded.

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, Francis R. Stark, of New York City, and H.A. & D.K. Jones, of Tuscaloosa, for appellant.

Foster, Verner & Rice and Brown & Ward, all of Tuscaloosa, for appellee.

SOMERVILLE J.

When a telegraph company accepts a message for transmission and delivery to the sendee, it impliedly undertakes to transmit the message promptly, and to deliver it promptly to the sendee after its transmission to the terminal office. The word "promptly" in this connection means expeditiously, and without undue delay, i.e., as quickly as is practicable under the circumstances.

Our cases have expressed this duty in somewhat variant phraseology. In Daughtery v. Am. Un. Tel. Co., 75 Ala. 168, 178, 51 Am.Rep. 435, it was said that-- "Messages must be sent in the order of their handing in, without favor or partiality, without delay, and without reference to the value of the interests to be affected."

In W.U.T. Co. v. Henderson, 89 Ala. 510, 517, 7 So. 419, 422 (18 Am.St.Rep. 148), it was said that the company's duty is "to forward the message accurately, and with proper diligence;" "and to deliver it with all convenient speed."

In W.U.T. Co. v. Chamblee, 122 Ala. 428, 434, 25 So. 232, 234 (82 Am.St.Rep. 89), the general rule is stated:

"That a telegraph company, in accepting a message for transmission, is under obligation, by its contract with the sender of the message, to transmit it correctly and without delay."

In W.U.T. Co. v. Merrill, 144 Ala. 618, 622, 39 So. 121, 123, a plea was held demurrable because it did not aver:

"That the company transmitted the message or attempted to transmit it promptly as it contracted to do, and which the law required it to do."

In W.U.T. Co. v. Saunders, 164 Ala. 234, 239, 51 So. 176, 178 (137 Am.St.Rep. 35), it was said:

"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."

In W.U.T. Co. v. Hill, 163 Ala. 18, 27, 50 So. 248, 251 (23 L.R.A. [[[N.S.] 648, 19 Ann.Cas. 1058), the duty is thus laid down:

"Upon the receipt of the message it is the duty of the telegraph company to transmit it without delay, and if from any cause it is impossible to transmit the message, or if delay will be necessary, the company should inform the sender. *** Delivery should be made as soon after transmission as practicable. The duty of early delivery is as necessary as the prompt transmission. What constitutes due diligence as to prompt delivery is usually a question for the jury, and usually depends upon the facts of each particular case."

In an action on the contract, negligence need not be charged. W.U.T. Co. v. Fuel, 165 Ala. 391, 51 So. 571. The absence of negligence in respect to the failure to promptly and duly transmit and deliver is, however, a legal excuse for such failure, and, being defensive matter, the burden of its proof rests upon the defendant. W.U.T. Co. v. Chamblee, 122 Ala. 428, 434, 25 So. 232, 82 Am.St.Rep. 89; W.U.T. Co. v. Merrill, 144 Ala. 618, 622, 39 So. 121, 113 Am.St.Rep. 66.

Count 1 sets up an undertaking "to transmit and deliver the message," and it also alleges facts from which the law implies an obligation to transmit and deliver promptly, that is, expeditiously and without undue delay. The breach charged is in accordance with the duty assumed, and we hold that the count is not subject to any of the grounds of demurrer.

Aided by the arguments of counsel, we have examined count 2 with critical care. Our conclusion is that it charges severally a breach of each of two distinct obligations of the contract sued on and seeks a recovery for both. But in actions on contracts duplicity of breaches as to distinct obligations is permissible, and does not make the complaint demurrable. Nave v. Berry, 22 Ala. 382; Watts' Ex'r v. Sheppard, 2 Ala. 425; 13 Corp.Jur. 733, § 868. We see no reason why this rule should not apply to implied stipulations and obligations imposed by law, as well as to those which are expressed in the contract.

The first breach charged is that defendant failed to transmit and deliver the message promptly, as it undertook to do. As to this, the count is clearly sufficient, and not subject to demurrer, for the reasons stated in our discussion of count 1, above.

The second breach charged is that defendant negligently and carelessly failed to inform plaintiff of its inability to so transmit and deliver--a separate and distinct obligation. Assuming for the moment, that this breach is not founded upon any duty shown, or that it is defectively stated as a matter of good pleading, the count as a whole was not thereby made subject to demurrer. In such a case, the proper practice is to address the demurrer only to the defective assignment; otherwise the demurrer cannot be sustained. Watts' Ex'r v. Sheppard, 2 Ala. 425; 13 Corp.Jur. 733, § 868.

But looking to the merits of the question, we are of the opinion that, in principle, it has been heretofore settled by our decisions adversely to defendant's contention. W.U.T. Co. v. Hill, 163 Ala. 18, 27, 28, 50 So. 248, 23 L.R.A. (N.S.) 648, 19 Ann.Cas. 1058; W.U.T. Co. v. Hicks, 197 Ala. 81, 72 So. 356. It is true that those cases related to defendant's inability to transmit the message, due to service conditions. But we are unable to discover any practical or substantial reasons for a difference in the obligation of the company in case of inability to transmit and of inability to deliver to the sendee after transmission. ...