Western Union Telegraph Co. v. Emerson

• Decision Date: 10 November 1914
• Docket Number: 445
• Parties: WESTERN UNION TELEGRAPH CO. v. EMERSON et al.
• Court: Alabama Court of Appeals

69 So. 335

14 Ala.App. 247

WESTERN UNION TELEGRAPH CO. v. EMERSON et al.

No. 445

Court of Appeals of Alabama

November 10, 1914

On Rehearing, June 1, 1915

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

Action by Mrs. Evie Emerson and others against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Reversed, and remanded for new trial.

As originally instituted the suit was by Mrs. Evie Emerson alone, and counted on a failure to deliver the following telegraphic messages, delivered to it at Colling, Ala., to be transmitted at Cotton Dale, Ala.:

"Colling, Ala., March 18th, 1911 to M.C. Fitts Cotton Dale, Ala. Mrs. Slayton very low. You all come up to-night. D.P. Cannon, MD."

It appears that later similar suits were filed by Mrs. Bama Fitts and Mrs. Leila Davis, who, together with the plaintiff Emerson, were the daughters of Mrs. Slayton, referred to in the telegram, and who died about 2 a.m. the following morning. It is alleged in the complaint that the defendant contracted and undertook to transmit and deliver said message to Marbin C. Fitts, husband of one of the plaintiffs, and brother-in-law of the other plaintiff, who was staying at his home at the time, but that the defendant breached the contract by failing to promptly deliver said message, etc.

Jones & Penick, of Tuscaloosa, and Forney Johnston and W.R.C. Cocke, both of Birmingham, and Geo H Fearons, of New York City, for appellant.

Brown &amp Ward, of Tuscaloosa, for appellees.

PELHAM P.J.

At the time of the submission of this case a motion to dismiss the appeal was urgently pressed upon the court, on the ground among others, that no copy of appellant's brief had been served on counsel for appellee prior to or at the time of submission, as required under the rules of the court. Code p. 1509, rule 13 (61 South. vii). Upon hearing the motion the court deemed the showing made by the appellant sufficient to authorize a submission of the case, and the motion to dismiss the appeal is overruled.

At this time it was earnestly insisted by appellee's counsel, in the oral argument of the case before the court, that the failure of the appellant to insist in the brief filed on submission of the cause upon many of the errors assigned on the record was a waiver and abandonment thereof. The case was argued orally before the court and submitted on the appellant's brief on the 23d day of April, 1913, and within the 10 days required under rule 13 (Code, p. 1509) the appellee's counsel filed their brief and argument, in which they again made the point, with citation of authorities, stressing their insistence that the court was restricted in the consideration of the assignments of error to those insisted upon in the appellant's brief on submission and not waived under the rules and previous holdings of the Supreme Court. It is the appellee's right to confine the errors to be reviewed to those properly urged in the brief filed on the original submission; and, as appellee stands upon her rights in this particular and insists upon the waiver of other errors assigned, we will consider and discuss as grounds of reversal only those errors not waived or abandoned. L. & N.R.R. Co. v. Holland, 173 Ala. 675, 693, et seq., 55 So. 1001; Dickens v. Dickens, 174 Ala. 345, 355, 56 So. 809.

The brief filed on submission does not conform to the rules with respect to the preparation of briefs (rules 10 and 12 [61 South. vii]), and contains the citation of no authority. It complains, however, in broad terms, of the rulings of the court on certain matters made the basis of the assignment of errors, and loosely argues these propositions. One of the questions thus presented and insisted upon as showing error in the ruling of the trial court is that the court sustained demurrers to the defendant's pleas A, B, C, and D, and assignments of error are based on such rulings. Pleas A, B, C, and D are pleas in abatement, averring that the suit was originally instituted by the plaintiff Evie Emerson alone, and that the plaintiffs Nannie Black, Bama Fitts, and Leila Davis had previously instituted individual suits against the defendant on the same contract growing out of the same alleged breach, which were pending at the time the complaint was amended, making the plaintiffs in those suits parties plaintiff to this suit. The record shows that the defendant had, previous to the filing of these pleas in abatement, filed plea No. 11 in abatement of this suit instituted in the name of Evie Emerson as plaintiff, averring a nonjoinder of parties plaintiff, and alleging that the contract, the foundation of the suit, was made by the defendant, not alone with the plaintiff Evie Emerson, but jointly with her and the said other named parties, Nannie Black, Bama Fitts, and Leila Davis. The judgment entry set out in the record shows that the plaintiff confessed this plea in abatement interposed by the defendant, and amended her complaint by adding the said Nannie Black, Bama Fitts, and Leila Davis as parties plaintiff to this cause of action. The judgment entry further shows that the plaintiffs took a nonsuit in each of said separate individual suits, and were required by the court, on the motion of the defendant, to pay the costs of said suits before being permitted to further prosecute this suit after amending the complaint by adding these parties as plaintiffs. The demurrers to the defendant's pleas in abatement A, B, C, and D were properly sustained, aside from the fact that the judgment entry shows that nonsuits were taken in each of the separate individual suits and the plaintiffs not allowed to prosecute their suit further after amendment until the costs in the suits instituted by these parties suing separately had been paid; for the reason that the amendment adding these persons as parties plaintiff had been made necessary by the defendant successfully maintaining the position taken by it in its plea in abatement No. 11. It was asserted in that plea that the contract sued upon was a joint contract made between defendant and all of the said parties, and these parties were, in consequence of this position taken by the defendant, forced to abandon their separate suits and join in the suit before the court as necessary parties plaintiff to it. Having gained the advantage of requiring the plaintiffs to join in the action as necessary parties to maintain the suit, the defendant was estopped from assuming a position inconsistent with that position, and setting up the same things in another and different aspect, by repugnant pleading to the prejudice of the adverse party in that suit, or another suit, for that matter, when founded on the same subject-matter. 16 Cyc. 796; Brown v. French, 159 Ala. 645, 49 So. 255; Woodruff v. Stough, 107 Ala. 314, 18 So. 258; Hodges v. Winston, 95 Ala. 514, 11 So. 200, 36 Am.St.Rep. 241; Fox v. Sampey, 9 Ala.App. 561, 63 So. 769.

"One who has made a choice between

...