Western Union Telegraph Co. v. Merrill

• Decision Date: 30 June 1905
• Citation: 144 Ala. 618,39 So. 121
• Parties: WESTERN UNION TELEGRAPH CO. v. MERRILL.
• Court: Alabama Supreme Court

39 So. 121

144 Ala. 618

WESTERN UNION TELEGRAPH CO. v. MERRILL.

Supreme Court of Alabama

June 30, 1905

Appeal from Cleburne County Court; T. J. Burton, Judge.

"To be officially reported."

Action by W. B. Merrill against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint contained two counts, which alleged, in effect that the defendant, a corporation organized and doing business for the receipt and transmission of telegraphic messages, received for transmission a message from one A. S Alexander, addressed to the plaintiff at Edwardsville advising plaintiff of the serious illness of plaintiff's wife at Birmingham, and saying that she would probably live no more than a day; that said Alexander delivered and paid for said message as agent, and on behalf of plaintiff; that said message was delivered for transmission to the defendant in Birmingham, Ala., at about 5 o'clock p. m. on the 8th day of June, 1902, the defendant being then notified that the person whose illness was mentioned in the message was the wife of the plaintiff, and that it was necessary that the dispatch be sent at once; that the defendant received the message, accepted the payment therefor, but did not forward the message to Edwardsville until the next day, and that in the meantime the wife of plaintiff had died; and, among other damages, claimed that plaintiff had, by reason of the failure to send and deliver such message, been unable to see his wife before her death, thereby suffering much mental pain and anguish. The defendant, when the case was called for trial moved to strike the same from the jury docket and continue it on the ground that the demand for a jury trial, which was indorsed on the complaint, was not signed by the plaintiff or by his attorney. This motion was denied. Thereupon the defendant demurred to the complaint upon the following grounds: First, that it did not appear that the plaintiff was injured in person or estate by the alleged negligence of the defendant; second, that the complaint did not aver that the defendant was informed or put on notice that the plaintiff would come to Birmingham, or was expected to come there, upon the delivery of the message; third, that it was not alleged that the agency of the sender of the message was disclosed to the defendant; fourth, that it was not alleged that, if the message had been transmitted, it could have been delivered to the plaintiff on the 8th day of June, 1902. The demurrer to the complaint was overruled, and thereupon the defendant filed three pleas. The first plea was the general issue. The gist of the second plea was to the effect that the message was written upon one of the blanks of the defendant company, and purported on its face to be received upon an agreement that it would be delivered free within the established free delivery limits of the terminal office, and that for a delivery at a greater distance a special charge would be made; that the plaintiff lived beyond such free delivery limits, and the defendant did not then know this, and was not so informed when the message was handed in; and that no consideration was paid for the delivery of said message beyond the free delivery district. The third plea was similar to the second, except that it further stated that the plaintiff had an office within the free delivery district, but that the message was handed the defendant late on Sunday evening, and that the office of the plaintiff was closed at that time. The plaintiff demurred to the special pleas, alleging as a ground of demurrer that said pleas failed to aver that the defendant promptly and with due diligence transmitted said message. This demurrer was sustained. The recitals of the facts applicable to the opinion, contained therein, are deemed sufficient for an understanding thereof.

Walker, Tillman, Campbell & Morrow, for appellant.

McCarty & Merrill, for appellee.

TYSON J.

The complaint contains two counts, and each predicates a right of recovery upon a breach of contract by defendant for its failure to transmit and deliver a telegram received from plaintiff's agent, Abercrombie, at Birmingham, to be sent to plaintiff at Edwardsville, containing the information of the serious illness of the latter's wife. W. U. Tel Co. v. Cunningham, 99 Ala. 314, 14 So. 579. These counts were amended so as to meet certain objections pointed out in the demurrer interposed to each of them. This demurrer was refiled after the amendments were allowed, and overruled by the court, and properly so. To the amended complaint the defendant filed two special pleas, to which a demurrer was sustained. The first of these averred that plaintiff resided outside the free delivery limits of the town of Edwardsville, and that plaintiff's agent, Abercrombie, did not deposit with the receiving officer a special charge to cover the cost of delivery, and that the plaintiff's agent did not advise that office of the fact that plaintiff resided beyond the free delivery limits of said town, and that the agent at the receiving office had no knowledge of that fact. The other plea sets up substantially the same facts, with the additional averment that plaintiff had a law office within the free delivery limits, but that his office was closed between the time the message was received for transmission and the time the train left for Birmingham. Neither of these 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. "When a message is handed in for transmission, the presumption must be and is that the sendee lives within the limits of free delivery, or that the sender takes the risk of delivery, unless he makes arrangements for delivery at a greater distance. And handing in such message without explanation casts no duty on the transmitting operator other than to forward the message accurately and with proper diligence. And it casts no duty on the terminal employé or operator other than to copy the message correctly and to deliver it with all convenient speed, if the sendee resides within the free delivery limits." W. U. Tel. Co. v. Henderson, 89 Ala. 510, 517, 7 So. 419, 18 Am. St. Rep. 148. A failure to...