Western Union Telegraph Co. v. Favish

• Decision Date: 03 February 1916
• Docket Number: 6 Div. 139
• Citation: 71 So. 183,196 Ala. 4
• Parties: WESTERN UNION TELEGRAPH CO. v. FAVISH.
• Court: Alabama Supreme Court

71 So. 183

196 Ala. 4

WESTERN UNION TELEGRAPH CO. v. FAVISH.

6 Div. 139

Supreme Court of Alabama

February 3, 1916

On Rehearing.

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Action by E.W. Favish against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, p. 449, Acts of 1911. Reversed and remanded on rehearing.

Forney Johnston and W.R.C. Cocke, both of Birmingham, for appellant.

Samuel B. Stern, of Birmingham, for appellee.

McCLELLAN J.

The wife of the appellee (plaintiff below) transmitted by local telephone to an agent of the appellant at Birmingham, Ala the following message addressed to the plaintiff at a certain street number in Chicago, Ill.:

"Reasons for not writing papa operated on Monday night. Doing as well as can be expected."

The only signature directed to be affixed to the message was the name Helen. Aside from a presently unimportant mistake in the initial letter of the surname of the addressee, the words of the message were understood and transcribed in the appellant's Birmingham office, and therefrom sent to its Chicago office, just as they were communicated by the wife through the telephone. After the message was received in an office of the appellant located in Chicago, and before the delivery of the message to the appellee, its words were changed to these:

"Reasons for not writing have (substituting the word have for papa) operated on Monday night. Doing as well as can be expected."

It is manifest that such a change in the words of the message wrought a breach of the contract and a negligent breach of duty; and that for either an action could be maintained by the party injured or aggrieved--the least damages awardable being nominal. It is the duty of such agencies to exercise due care and skill to transmit and deliver telegraphic messages with substantial accuracy. Joyce on Electricity, § 733. This duty and obligation was breached in this instance. If, as there was evidence tending to show, the message was sent by appellee's authorized agent, and the jury so concluded, the appellee was entitled to the general affirmative charge on that condition. So, the only questions necessary to be considered on this appeal relate to the matter of damages recoverable. On the evidence in this record, it must be held: The message having been communicated by telephone to a representative of the appellant in its Birmingham office, and there accepted by its agent for transmission and delivery, and the contract there and then made not having bound the plaintiff by any special stipulations or limitations that might have been competently incorporated in the contract, there is not in the case any basis for contentions that could only be predicated of special stipulations or limitations entering into the contract. The court below appropriately submitted to the jury the inquiry, raised by the wording of the message as it was delivered to the addressee in Chicago, whether it could have been reasonably concluded from the words of the message, as delivered to the appellee, that the person, indicated by the signature to the message, had been subjected to a surgical operation. Besides, there was evidence--in addition to the implications afforded by the words of the message as delivered to the appellee--to the effect that the appellee's wife had not entirely recovered from an operation performed some time before, thus, quite naturally it may have been found by the jury, rendering more apt the adoption of the interpretation of the message which accorded with the possibility of a recurrence, during the husband's absence, of the necessity for another operation. There was no error in allowing evidence to the indicated effect; and there was no error in submitting the stated inquiry to the jury's determination.

The message was delivered to appellee about 6:30 p.m. He interpreted the message as referring to an operation performed on his wife, and within about two hours he had taken the train for Birmingham, where he arrived the next afternoon to find, as the original of the message stated that an operation had been performed on his wife's father, and not on his wife.

The cause of action is set forth in two counts. The first count is ex delicto, for the breach of duty arising out of the relation and obligations made by the contract; and the second count is ex contractu, for the breach of the contract. W.U. Tel. Co. v. Krichbaum, 132 Ala. 535, 31 So. 607. The elements of damages claimed in both the counts are substantially the same. They include expenses of the trip to and from Birmingham, from Chicago; loss of time from his business; mental pain and anguish; and the loss of the price paid for the transmission and the delivery of the message. So far as the first count, which is in tort, is concerned, it is clear that the recoverability of expenses claimed depends upon the response to this contingent inquiry; if the message as delivered to the addressee was found by the jury to be reasonably susceptible of the interpretation accorded it by the addressee, was the prompt trip of the appellee to Birmingham a proximate consequence of the negligently caused change in the wording of the message? The addressee had the right to assume that no breach of contractual obligation or negligent act or omission of the appellant had intervened to change the words of the message, and, if the words in the message, as delivered to the addressee, reasonably admitted of the interpretation given them by this addressee, our opinion is that a journey to Birmingham was of the damnifying consequences for which the appellant is responsible. The governing rule, in actions ex delicto, is thus stated in Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 249, 250, 26 So. 349, 354:

"The logical rule in this connection, the rule of common sense and human experience as well (if indeed there can be a difference between a logical doctrine and one of common sense and experience, as some authorities appear to hold), is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind." Briggs v. B.R.L. & P. Co., 188 Ala. 262, 66 So. 95.

It is the ordinary, the normal, man the law must contemplate when standards of conduct, or the probability of action, or the effect of a wrong, are to be considered. When an absent husband is advised, especially without previous warning, that his wife has been submitted to a surgical operation, it is most natural that he should, if practicable, immediately proceed to her bedside. The converse would be highly abnormal and unnatural. This generally known expression of a human characteristic or the probability of such action must enter into the inquiry stated. The message as delivered to the addressee (under the interpretation he put upon it) gave evidence of the fact of the performance of a surgical operation--a matter ever, unless fully explained, of serious import to those nearly related to the subject of the operation; and a natural normal consequence of such advice is to inflict mental distress on a husband. Under the established doctrine above quoted from the Armstrong Case, the range of responsibility and accountability of the negligent party is not restricted by the absence of knowledge of the negligent party that "Helen" was the appellee's wife, or the fact that the appellee would in fact, or would probably, proceed to Birmingham in consequence of the information the (erroneous) message bore to him, under his interpretation of its words. The consequences for which there is responsibility and accountability are such as would occur to the mind of a normal, prudent, and experienced man, advised of all the circumstances. If otherwise entitled to recover, the trip to and from Birmingham and the expenses thereof were of the consequences proximately resulting from the negligent change of the message, and the plaintiff was due to be reimbursed for the reasonable expenditure made by him on that account.

Like considerations lead to the conclusion that the action of the appellee in going at once to Birmingham was a consequence of the breach of the contract (declared on in the second count) wrought by the change of the words of the message, and was a consequence within the contemplation of the...