Western Union Telegraph Co. v. Royal

Alabama Court of Appeals

Western Union Telegraph Co. v. Royal

74 So. 94, 15 Ala. App. 546, 1916 Ala. App. LEXIS 231

CourtAlabama Court of Appeals

DecidedDecember 19, 1916

StatusPublished

Cited by1 cases

This text of 74 So. 94 (Western Union Telegraph Co. v. Royal) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Western Union Telegraph Co. v. Royal, 74 So. 94, 15 Ala. App. 546, 1916 Ala. App. LEXIS 231 (Ala. Ct. App. 1916).

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Opinion

BROWN, J. —

(1) The telegram offered in evidence, dated, “Sprague, Ala., July 9, 1914,” purporting to have been written on a blank containing the stipulation set up in the defendant’s special plea 3, to wit:

“Telegrams will be delivered free within one-half mile of the company’s offices in towns of 5,000 population or less. Beyond these limits the company does not undertake to make delivery, but will without liability, at sender’s request, as his agent and at his expense, endeavor to contract for him for such delivery at a reasonable price,” which was not positively identified as the original telegram which the defendant undertook to transmit and deliver for plaintiff. The telegram Mot being positively identified as the original, its identity was left to inference, and hence was a question for the jury. The only other evidence touching the subject as to what the blanks used by the defendant contained was that of the defendant’s agent- Quillian, whose testimony does not prove literally the stipulation as pleaded; nor does his testimony show that the blanks referred to in his testimony contained the statement that the telegram had been taken by the telegraph company subject to the stipulation as averred in the plea. Therefore the court could not say, as a matter of law, had there been no replication to this plea, that the defense set up was sustained by the undisputed evidence.

(2) Furthermore, there was some evidence tending to sustain the plaintiff’s special replication to the defendant’s special plea 3. The defendant’s agent, who testified that he had been in its employ for 20 years, further testified to facts tending to show that it was a custom for the defendant’s agent to deliver messages at Hartford outside of the free delivery limits when the residence of the sendee was known-, and without extra charge; and the fact that the undisclosed purpose of the agent was for *549 the accommodation of the patrons of the company would not change the effect of this evidence under the issues formed in this case. What we have said justified the court’s refusal of the affirmative charge requested by the defendant, and in giving the instructions in the oral charge to which an exception was reserved.

(3) We cannot agree with the contention of appellant that the fact that the hour for the funeral service was changed without notice to it relieved it of liability for damages for mental anguish suffered by the plaintiff, when, if the message had been promptly delivered, the hour for the funeral might not have been changed and the damage averted.

The contract for the transmission of the telegram from Per-due to Royal, which was promptly transmitted and delivered, advising Royal of his son’s death and the time fixed for the funeral, and the one with Royal for transmission and delivery of the telegram from Royal to Perdue advising when Royal would embark on his journey, were two separate and distinct transactions ; and, while the fact of the sending of the first message was admissible as evidence showing that Royal’s presence was desired at the funeral, it cannot be made a predicate to excuse the defendant’s .negligence in failing to promptly transmit and deliver the telegram from Royal to. Perdue. When the defendant accepted this telegram, the contract which the law implies from the transaction imposed on it the duty to promptly transmit and deliver it to the sendee. It had no right to rely on the fact that the funeral was not to take place until 2 o’clock, or assume that the time would not be changed. As we have said, the fact that Perdue sent the first telegram to the plaintiff was evidence that his presence at the funeral was desired and clearly authorized the jury to draw an inference that the time of the funeral would not have been changed if the defendant had promptly transmitted and delivered the telegram in question. Charge 2 was therefore refused without error.

(4) Charge 4 ignores the issues presented by the special replication, and was properly refused.

(5) There was no error in refusing charge 5. —W. U. T. Co. v. Hawkins, 14 Ala. App. 295, 70 South. 15, is overruled in W. V. T. Co. v. Morrison, infra, 74 South. 88.

No error appearing in the record, the judgment is affirmed.

Affirmed.

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BROWN, J. —

(1) The telegram offered in evidence, dated, “Sprague, Ala., July 9, 1914,” purporting to have been written on a blank containing the stipulation set up in the defendant’s special plea 3, to wit:

“Telegrams will be delivered free within one-half mile of the company’s offices in towns of 5,000 population or less. Beyond these limits the company does not undertake to make delivery, but will without liability, at sender’s request, as his agent and at his expense, endeavor to contract for him for such delivery at a reasonable price,” which was not positively identified as the original telegram which the defendant undertook to transmit and deliver for plaintiff. The telegram Mot being positively identified as the original, its identity was left to inference, and hence was a question for the jury. The only other evidence touching the subject as to what the blanks used by the defendant contained was that of the defendant’s agent- Quillian, whose testimony does not prove literally the stipulation as pleaded; nor does his testimony show that the blanks referred to in his testimony contained the statement that the telegram had been taken by the telegraph company subject to the stipulation as averred in the plea. Therefore the court could not say, as a matter of law, had there been no replication to this plea, that the defense set up was sustained by the undisputed evidence.

(2) Furthermore, there was some evidence tending to sustain the plaintiff’s special replication to the defendant’s special plea 3. The defendant’s agent, who testified that he had been in its employ for 20 years, further testified to facts tending to show that it was a custom for the defendant’s agent to deliver messages at Hartford outside of the free delivery limits when the residence of the sendee was known-, and without extra charge; and the fact that the undisclosed purpose of the agent was for *549 the accommodation of the patrons of the company would not change the effect of this evidence under the issues formed in this case. What we have said justified the court’s refusal of the affirmative charge requested by the defendant, and in giving the instructions in the oral charge to which an exception was reserved.

(3) We cannot agree with the contention of appellant that the fact that the hour for the funeral service was changed without notice to it relieved it of liability for damages for mental anguish suffered by the plaintiff, when, if the message had been promptly delivered, the hour for the funeral might not have been changed and the damage averted.

The contract for the transmission of the telegram from Per-due to Royal, which was promptly transmitted and delivered, advising Royal of his son’s death and the time fixed for the funeral, and the one with Royal for transmission and delivery of the telegram from Royal to Perdue advising when Royal would embark on his journey, were two separate and distinct transactions ; and, while the fact of the sending of the first message was admissible as evidence showing that Royal’s presence was desired at the funeral, it cannot be made a predicate to excuse the defendant’s .negligence in failing to promptly transmit and deliver the telegram from Royal to. Perdue. When the defendant accepted this telegram, the contract which the law implies from the transaction imposed on it the duty to promptly transmit and deliver it to the sendee. It had no right to rely on the fact that the funeral was not to take place until 2 o’clock, or assume that the time would not be changed. As we have said, the fact that Perdue sent the first telegram to the plaintiff was evidence that his presence at the funeral was desired and clearly authorized the jury to draw an inference that the time of the funeral would not have been changed if the defendant had promptly transmitted and delivered the telegram in question. Charge 2 was therefore refused without error.

(4) Charge 4 ignores the issues presented by the special replication, and was properly refused.

(5) There was no error in refusing charge 5. —W. U. T. Co. v. Hawkins, 14 Ala. App. 295, 70 South. 15, is overruled in W. V. T. Co. v. Morrison, infra, 74 South. 88.

No error appearing in the record, the judgment is affirmed.

Affirmed.

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74 So. 94, 15 Ala. App. 546, 1916 Ala. App. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-union-telegraph-co-v-royal-alactapp-1916.

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