American Union Telegraph Co. v. Daughtery, 89 Ala. 191

American Union Telegraph Co. v. Daughtery

89 Ala. 191 | Ala. | 1889

Lead Opinion

CLOPTON, J.

It having appeared during the course of the trial, that the legal title to the contract was in Renfro Bros., the brokers of H. L. Daughtery, by reason of having signed, in their own names, and delivered to defendant for transmission, the telegram set forth in the complaint, an amendment making it the suit of the surviving partners of Renfro Bros, for the use of Daughtery, in whose name it was originally commenced, was proper.—Harris v. Plant, 31 Ala. 639. The amendment, when allowed, related to the commencement of the suit, and no new matter or claim being introduced, the statute of limitations ran only to the filing of the original complaint. — Evans v. Richardson, 76 Ala. 329.

As in cases of other writings, proof of the loss of a telegram is a pre-requisite to the admission of secondary evidence of its contents.—Whilden v. Mer. & Plant. Bank, 64 Ala. 1. Ordinarily, -the declarations of the person who last had possession of a writing, are not receivable as evidence of its loss, if he be alive and in the jurisdiction of the court. *195There are cases in which the declarations- of a person to whom it was last traced, to the effect that he did not have the instrument, or to whom he had delivered it, have been received for the purpose of showing that the party had prosecuted a diligent search.—Reg. v. Kenilworth, 52 Eng. Com. Law Rep. 641. Though, as the sufficiency of the preliminary proof is for the court, it may not be necessary to preserve, the strict rule between direct and hearsay evidence, it is not so far relaxed as to admit hearsay evidence to show the fact of search, or the destruction of the writing by the declarant. 1 Wharton on Ev. § 150. It was not competent to allow the witness Purnell to testify, from information received from others, that the papers of defendant had been sent from Mobile to New York, and sold to a paper-mill.

In 1 Greenleaf on Evidence, § 163, the rule, as to proof of the testimony of a witness given on a former trial, is stated as follows: “When the testimony was given under oath, in a judicial proceeding in which the adverse litigant was a party, and when he had the power to cross-examine, and was legally called upon to do so, the great and ordinary test of truth being no longer wanting, the testimony, as given, is admitted after the decease of the witness, in any subsequent suit between the same parties. It is also received, if the witness, though not dead, be out of the jurisdiction; or can not be found, after diligent search; or is insane, or sick; or is unable to testify, or has been summoned, but appears to have been kept away by the adverse party.” That the witness was examined under oath in a judicial proceeding, and that the opposite party had an opportunity, and was legally called upon to cross-examine, are essential requisites to admissibility. It sufficiently appears that the witness Culp was beyond the jurisdiction of the court; that interrogatories were filed, and an affidavit of his non-residence made, and that his answers to the interrogatories were taken; but it is not shown that his deposition was used in evidence on the former trial, nor that defendant had notice of the filing of the interrogatories, or was called upon to cross-examine.

The second plea of defendant sets up that, by the contract for the transmission of the message, defendant was not to be liable for damages from any failure to transmit or deliver, or from any error in the transmission or delivery of an unrepeated message, and, to guard against errors, would repeat any telegram for extra payment, or one-half the regular rate; and in such case, not to be liable for damages beyond fifty *196times the amount received for sending and repeating the telegram; and that the telegram in question was not repeated. In West Un. Tel. Co. v. Way, 83 Ala. 240, we held, that a telegraph company can not contract to be absolved from due care and diligence in the transmission and delivery of telegrams to a point of destination on its- own line, or for exemption from liability for the negligence of its own agents; and that terms and conditions, similar to those set up in the plea, are limited to cases where the negligence of the company is not the cause of delay or non-delivery. The plea is defective, in failing to aver facts which bring the case within the scope of exemption.

On the former appeal in this case, the several grounds of demurrer to the complaint, now presented for consideration, except two interposed after the case was remanded, were fully considered, and held not to be well taken. The same question relating to the liability of the telegraph company for failure to transmit and deliver in due time a message in cipher, which was not explained to the operator, then presented by demurrer alone, is now raised by both demurrer and charges. The court held, when the case was formerly before us, that though the message was in cipher, and its contents or importance was not communicated to the operator, if the company received and agreed to transmit and deliver it, and failed to do so in consequence of the fault or neglect of its agents, it is liable for the damages naturally and proximately resulting therefrom; but not for damages arising from special, collateral circumstances not communicated, and in reference to which the parties are not presumed to have contracted.—Daughtery v. Amer. Un, Tel. Co., 75 Ala. 168. This question was subsequently re-considered in West Un. Tel. Co. v. Way, supra, and the rule declared in the former case re-affirmed. We see no reason for departure from the ruling.

But it is insisted, that defendant’s prior purchase of three hundred bales of cotton, two hundred to be delivered in May, and one hundred in June, 1881, are special circumstances not communicated. The telegram, as translated, is: “Sell on account of Daughtery, to cover, 100 June, 200 May.” This was a direction to cover the previous contracts of purchase of cotton to be delivered in the same months, and was equivalent to a direction to sell* the cotton previously purchased. It was so construed on the former appeal, and ruled that the natural and proximate damages were the *197depreciation in the market price of cotton, between tbe times of the direction to sell, and tbe actual sale a few days thereafter. All tbe rulings of tbe court, with respect to tbe measure of damages, are in accord with these principles, except tbe refusal to give tbe charge requested by tbe defendant, to tbe effect, that plaintiff is not entitled to recover any amount except tbe price of tbe telegram, and such damages as naturally arose from a breach of tbe contract. Tbe refusal to give this charge can be justified only on tbe ground that tbe case warranted tbe j.ury in allowing exemplary damages. There is no evidence of wanton or willful negligence, or negligence so gross as to evince an entire want of care. Not being a case for tbe allowance of exemplary damages, plaintiff is entitled to recover only tbe actual damages sustained.

It is shown that Renfro Bros, were tbe brokers of Daughtery, and that Lehman Bros., to whom tbe telegram was addressed, were their correspondents, and members of tbe Cotton Exchange in New York. Whether Lehman Bros, were tbe brokers of Daughtery, or whether there were any contractual relations between them, is immaterial. Tbe liability of tbe defendant is not affected by tbe character of their relations, or by tbe want of contractual relations. Tbe several charges in reference to this question were abstract, and properly refused.

Tbe other assignments of error have not been pressed in argument, and it is unnecessary to consider them.

Reversed and remanded.

Dissenting Opinion

SOMERYILLE, J.,

dissenting. — I dissent from so much of tbe opinion of a majority of the court in this case as relates to tbe damages recoverable for tbe failure to transmit and deliver cipher telegrams. I think tbe sound rule is to limit tbe measure of damages in these cases to such as are nominal, or, at most, tbe price paid for sending tbe message. Tbe reason and authorities in support of this conclusion are fully discussed in my dissenting opinion in tbe Western Union Tel. Co. v. Way, 83 Ala. 562-565.