Western Union Telegraph v. Beasley

• Decision Date: 16 December 1920
• Docket Number: 6 Div. 115.
• Citation: 87 So. 858,205 Ala. 115
• Court: Alabama Supreme Court
• Parties: WESTERN UNION TELEGRAPH CO. v BEASLEY.

87 So. 858

205 Ala. 115

WESTERN UNION TELEGRAPH CO. v BEASLEY.

6 Div. 115.

Supreme Court of Alabama

December 16, 1920

Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.

Action by W. H. Beasley against the Western Union Telegraph Company. Judgment for the plaintiff, and the defendant appeals. Transferred from Court of Appeals under section 6, Acts 1911 p. 449. Reversed and remanded.

Johnston & Cocke, of Birmingham, A. F. Fite, of Jasper, and Francis R Stark, of New York City, for appellant.

J. M Pennington, of Jasper, and W. T. McElroy, of Carbon Hill, for appellee.

THOMAS J.

The action was for damages instituted by W. H. Beasley against the Western Union Telegraph Company for failure in due transmission and delivery of a message. Submission was had on counts 1 and 2, to which defendant replied "Not guilty," and by a denial of "all the allegations of each of said counts."

The evidence for plaintiff is as follows: That his half-brother, P. E. Day, lived with plaintiff's mother at Oakman, Ala., at the time of her death and prior thereto; that plaintiff had agreed with said Day that, in event she "got worse, he [Day] would telegraph plaintiff"; that she became dangerously ill about April 8, 1918, and said Day sent, or caused to be sent, a telegram giving this information to plaintiff, which was not promptly received; that about 9:40 a. m. said Day gave or caused the telegram to be given the agent at Oakman, who acted for defendant company in sending the message to W. H. Beasley at Carbon Hill, Ala., and gave him 75 cents for sending the message; that plaintiff's mother died about 8 o'clock p. m. of the day the message was attempted to be transmitted; that plaintiff lived about four miles from Carbon Hill when his mother died; that on April 8th plaintiff as usual carried the mail on a rural route from Carbon Hill, spent the night at his home, and the next morning at 7 o'clock was at Carbon Hill where he remained 30 minutes before starting out with the mail, returning about 2:30 p. m., staying from 30 to 50 minutes; that after he returned that evening plaintiff made inquiry at the telegraph office and was told there was no message for him; that he returned to the post office and inquired if the message had been sent there, and was informed that they "knew nothing about it"; that plaintiff did not receive the telegram until about 2:30 p. m. The telegram introduced in evidence, hereinafter set out, was contained in an envelope addressed to "W. P. Beasley, City." Plaintiff further testified that he was prevented from attending his mother's funeral for the reason that, after receiving the telegram, he learned by phone that his mother, having died about 8 o'clock p. m. on the 8th of April, was being buried at the time of his inquiry; that he could have gone from Carbon Hill to Oakman by private conveyance in about three hours, and by train leaving Carbon Hill at 3 o'clock p. m. and arriving at Oakman about 7 o'clock the same night; that the two points were about 15 miles distant through the country.

The defendant's evidence was that the original message filed with defendant's operator at Oakman, Ala., at 9:40 a. m., April 8, 1918, by W. H. Gregory at the request of P. E. Day, was transmitted by said operator through Birmingham, Ala., to Nashville, Tenn., the latter being the nearest relay point; that the message was received at Birmingham at 10:05 a. m. on the day received at Oakman, and transmitted by the Birmingham operator to the telegraph office at Nashville, Tenn., at 10:25 a. m. on the same day. From Nashville the message was relayed through the telegraph office of defendant at Memphis, Tenn., and received at 10:40 a. m. on the day it was filed at Oakman, and was transmitted to Carbon Hill; that there was a delay in getting the message through from Memphis, Tenn., to Carbon Hill, Ala., and it was not sent from Memphis to the receiving point until 2:51 p. m. and received at Carbon Hill at 2:53 p. m. on said April 8th; that as received at Carbon Hill it was addressed to "W. P. Beasley" instead of "W. H. Beasley" as originally sent; that "said message was relayed according to defendant's usual custom and practice at that time, and the route used for the transmission of the message sued on was the route previously adopted and in regular use by the defendant in the course of its business in the transmission of messages filed at Oakman to Carbon Hill"; that "defendant had no telegraphic line or means of direct communication between Oakman and Carbon Hill, and the message could not have been transmitted over defendant's line directly from Oakman to Carbon Hill"; that "the message could not have been sent from Birmingham to Carbon Hill, without cutting the wire in on the Birmingham keyboard for the following reasons: This wire ran through the Birmingham office and through the Carbon Hill office on the date in question, but in order for Birmingham to communicate direct with Carbon Hill or Carbon Hill with Birmingham it would have been necessary for the Birmingham office to cut in this wire on its keyboard and give it an independent key, as the wire was never used for Carbon Hill business except in cases of emergency such as would arise through a storm putting other lines of communication with Carbon Hill out of communication; in other words, an actual physical change would have been necessary in order to make direct communication between Birmingham and Carbon Hill feasible." The agreed statement of facts further shows of defendant's effort to deliver the message that on its receipt the Carbon Hill operator endeavored to find the addressee, and, failing, delivered the message to the station porter at Carbon Hill with instructions to mail it.

The reasonable inferences from the evidence leave little necessity for recourse to judicial knowledge. Courts will take judicial knowledge of the physical location of the sending point (Oakman) as situated in relation to the receiving point (Carbon Hill); that both are in the county of Walker, state of Alabama, and are not a great distance from Birmingham, Ala., which the evidence shows to have been the first relay station of the defendant to which the message was sent. Did not the evidence show the fact that each of said points was touched by physically connecting telegraph lines over which plaintiff's agent might have transmitted (in manner indicated in agreed statement of facts) the message and by railway lines over which he might have gone to Oakman, it may be judicial knowledge may be taken of such physical properties or agencies of transmission and transportation. W. U. Tel. Co. v. Robbins, 3 Ala. App. 234, 56 So. 879; Ga. Pac. Ry. Co. v. Gaines, 88 Ala. 377, 7 So. 382; Green & Sons v. Lineville Drug Co., 150 Ala. 112, 43 So. 216, 124 Am. St. Rep. 17; Smitha v. Flournoy's Adm'r, 47 Ala. 345; Waters v. State, 117 Ala. 189, 23 So. 28; Howard v. State, 172 Ala. 402, 55 So. 255, 34 L. R. A. (N. S.) 990; Webb v. White Eng. Corp., 85 So. 729; 6 Encyc. Dig. Ala. Rep. pp. 30, 31, § 7, and page 41, § 20. The evidence shows that Oakman, Carbon Hill, and Birmingham were at the time telegraph stations on defendant's physical lines of transmission, and that the message was transmitted from Oakman to Birmingham, and from there beyond the confines of the state, without the knowledge or consent of the plaintiff or his agent. We have set out in extenso the evidence of the physical connection of defendant's telegraph lines at Birmingham as extending from Oakman to Carbon Hill.

The contract of the parties, finding expression in the telegram delivered by plaintiff's agent at Oakman for transmission to plaintiff at Carbon Hill, was:

"4/8. To W. H. Beasley, Carbon Hill, Ala. Mother is dying. Come at once. [Signed] P. E. Day. O. K. B. 10:05 A. M."

As transmitted and delivered it was:

"Oakman, Ala., 9:40 A. M. April 8th, 1918. W. P. Beasley, Carbon Hill, Ala. Mother is dying. Come at once. [Signed] P. E. Day. 2:53 P. M."

The envelope was addressed "W. P. Beasley, City." The evidence without dispute shows that plaintiff's initials are "W. H."

Defendant insists: (1) That in order to effect direct telegraphic communication between Birmingham and Carbon Hill and so confine the transmission of messages, originating at Oakman and addressed to persons at Carbon Hill,...