Western Union Telegraph Co. v. Robbins
| Decision Date | 16 November 1911 |
| Citation | 3 Ala.App. 234,56 So. 879 |
| Parties | WESTERN UNION TELEGRAPH CO. v. ROBBINS. |
| Court | Alabama Court of Appeals |
On Application for Rehearing, December 14, 1911.
On Application for Rehearing.
Appeal from City Court of Birmingham; Charles A. Senn, Judge.
Action by S. O. Robbins against the Western Union Telegraph Company for damages for failure to promptly deliver telegram. Judgment for plaintiff, and defendant appeals. Affirmed.
Campbell & Johnston, for appellant.
Bowman, Harsh & Beddow, for appellee.
The suggestion that the demurrer to the complaint should have been sustained because of its failure to aver a definite loss in estate to the plaintiff is based upon the presence in the last clause of the complaint of the allegation that "the amount paid plaintiff for the transmission of said message as aforesaid, to wit, twenty-five cents, was lost to the plaintiff." It is urged that this averment shows that the plaintiff could not have suffered a loss by the payment of an amount to himself. If the complaint is read as a whole it cannot fairly be given the meaning sought to be imputed to it. The amount mentioned in the above-quoted clause as having been lost to the plaintiff is identified as the amount paid "as aforesaid." The only payment previously mentioned in the complaint is of the "hire and reward," plainly stated to have been paid by the plaintiff. A mere clerical mistake in one part of a pleading such as the use of one word for another, where, on reading it as an entirety, there is and can be no doubt as to what word the pleader intended to use, will not be allowed to fix upon the pleading a meaning plainly not intended. 4 Ency. of Pl. & Pr. 746, 747; 31 Cyc. 77. A mere reference to the former part of the complaint is enough to show that it was by a clerical mistake that the word "plaintiff," where it first appears in the above-quoted clause, was inserted when the word "defendant" was intended. The complaint, read as a whole, clearly avers that the amount named was paid by and lost to the plaintiff. The demurrer was properly overruled.
D. A. Robbins, the sender of the message, who is a brother of the plaintiff, testified, without objection, that his mother was dead; that he and the plaintiff were reared by their grandmother, whose death was announced in the telegram; the witness stating that he and the plaintiff called her "mother." In this connection, the witness was asked how old he was when his mother died. The defendant's objection to the question having been overruled, the witness answered that he was nine years old. The defendant excepted to the action of the court in overruling its motion to exclude the answer to the question. It may be conceded that the matter deposed to was irrelevant and immaterial. But it is not perceived how its admission in evidence could have prejudiced the defendant. The evidence, admitted without objection, showed that the plaintiff and the sender of the message were brothers; that their mother died when the plaintiff was about six years old; and that the two brothers were brought up by their grandmother. With these facts in evidence without objection, it is inconceivable that the defendant could have suffered any injury by the admission of proof that the plaintiff's brother was his senior by three years. The fact so allowed to be proved could not have been of benefit to the plaintiff, or have had any unfavorable bearing upon any position sought to be maintained by the defendant in the trial. A judgment is not to be reversed because of the admission of immaterial evidence that could not have harmed the party objecting. Southern Railway Co. v. Cunningham, 152 Ala. 147, 44 So. 658; Fowler v. State, 155 Ala. 21, 45 So. 913; Snedecor v. Pope, 143 Ala. 275, 39 So. 318.
The counsel for the appellant insist that the general affirmative charge requested by the defendant should have been given, because the proof failed to show that D. A. Robbins, in sending the message, was acting for or as the agent of the plaintiff. This contention is based upon the statement of D. A. Robbins that he sent the message at the request of a brother-in-law of the deceased. That statement was only part of the evidence on the subject. The same witness had already testified that a few days before the telegram was sent the plaintiff wrote him a letter, telling where he was, and asking that if his grandmother got any worse to let him know; and the plaintiff testified that when he got to Nauvoo he wrote to his brother and told him where he was boarding, and asked his brother to telegraph him if their grandmother got worse. There was evidence to support an inference that D. A. Robbins, in sending the message, was acting in pursuance of a request of the plaintiff and as his agent, though he was informed of his grandmother's death by another, and, in sending the telegram, acted also on the latter's suggestion or request. The fact that another person also asked the sender to send the message would not stand in the way of the conclusion that he acted for the plaintiff, and that the plaintiff in repaying the cost of the message was discharging a debt for an expense incurred at his instance. We understand the ruling in the case of Western Union Telegraph Co. v. Northcutt, 158 Ala. 539, 48 So. 553, 132 Am. St. Rep. 38, upon which the counsel for the appellant rely in this connection, to be merely to the effect that one person, in sending a telegram, is not to be regarded as acting as the agent for another, in the absence of an agreement or understanding between them to that effect; in other words, that the sender of the telegram is not to be regarded as acting as the agent for another in sending it, merely because such other person understood that that was the case, if the sender was not a party to such agreement or understanding. In the case at bar, there was evidence tending to show that the telegram was sent in pursuance of an agreement or understanding between the sender and the plaintiff that, in the contingency provided for, the telegram was to be sent to the latter.
It is argued in behalf of the appellant that the second, third, fourth, and eighth charges refused to it should have been given, because of the alleged absence of any evidence tending to show that the plaintiff could or would have attended the funeral of his grandmother, even if the message had been promptly delivered. It may be admitted that the plaintiff could not sustain the claim that, by the failure to deliver the message with reasonable promptness, he was deprived of the privilege of attending his grandmother's funeral, in the absence of evidence tending to show that he could and would have availed himself of the opportunity to do so, if he had received the information in due time. There was a ruling in the case of Western Union Telegraph Co. v. McMorris, 158 Ala. 563, 48 So. 349, 132 Am. St. Rep. 46, to the effect that a jury would not be authorized to find that a failure to deliver a telegram had an alleged result, in the absence of evidence to support such a conclusion; and in that case the court held that the requisite evidence was lacking.
The question then is, Is there a similar deficiency of evidence in the case at bar? There was evidence tending to show the following facts: About three weeks before the death of the plaintiff's grandmother, he left the place near Littleton, in Jefferson county, where he and his grandmother had lived up to that time. The grandmother had been in poor health for some time. She had a cancer, and it was recognized as inevitable that she would die of the disease.
The plaintiff located at or near Nauvoo, in Walker county, and got employment there. As soon as he did so he wrote to his brother, who lived near the grandmother, giving information of his location and of the name of the person with whom he was boarding, and asking that a telegram be sent him if his grandmother got worse--that he be notified if anything went wrong--which letter was received by the brother several days before the grandmother died. The brother sent the telegram from Littleton to the plaintiff at Nauvoo at about 2:30 in the afternoon of the day of the grandmother's death. Several hours later in the same day the plaintiff was in Nauvoo and, in company with the person in whose care the message was sent who was known to the telegraph...
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