49 So. 770 | Ala. | 1909
This is an action on the case, brought by the sendee of a telegraphic message, to recover damages of the defendant for a negligent mistake of the defendant’s agents in transmitting the message from Trio Manufacturing Company, at Forsyth, Ga., to plaintiff at Anniston, Ala. The message delivered at Forsyth was in this language: “Forsyth, Ga., Oct; 2, 1906. Anniston Cordage Company, Anniston, Alabama. Offer thirty thousand three and four ply eighths sixteen half. Quick reply. (Signed) Trio Manufacturing Company.” The mistake in the transmission of the message consisted in the substitution of “fifteen” for “sixteen” where it occurred in the message.
But the court left undecided the question here in hand, as that was a case ex contractu, and not in tort. The
The case of Frazier v. Telegraph Co., supra, is a well-considered one by the Supreme Court of Oregon, and we adopt a part of the opinion-in that case as tersely expressing our own views of the law governing the question-: “A telegraph company is not a common carrier in the sense that it is an insurer against mistakes in transmission of messages or delay in their prompt delivery; hut it is an instrument of commerce and a public service corporation. It therefore owes the duty to those for whose benefit it undertakes to transmit and deliver- messages to transmit and deliver them without unreasonable delay. For a violation of this duty, .or for a negligent performance thereof, it is responsible to the party for whose benefit the contract was made, whether it he the sender or the addressee. But the right of an addressee to recover is necessarily grounded upon the contract he-
There is no pretense, by averment in either count of the complaint, that the defendant, at the time it received the message for transmission, was given any information that it was for the benefit of the sendee. The question then arises: Is the language of the message sufficient to.convey such information? 'We think it easy of demonstration that it is not; and it suffices to say, without entering into a discussion of the point, that this court holds that the message, in its wording, is not such as would charge the transmitting company with the information that the sendee is the party for whose benefit it is sent.
Upon the foregoing considerations, it follows that the complaint fails to show any duty owing from the defendant to the plaintiff, or any breach of such a duty. Therefore no error was by the trial court committed in sustaining the demurrer to the several counts of the complaint. It is needless to discuss any other question presented. On the question of damages, however, see Frazier v. Telegraph Co., supra, the cases there cited, and the notes to the opinion.
Let the judgment of the city court be affirmed.
Affirmed.