Western Union Telegraph Co. v. Waters
139 Ala. 652
Ala.
1903
Check Treatment
TYSON, J. —

The complaint upon which this cast: was tried contains four counts, designated “2,” “A,” "11,” and “C.” The first three are ex contractu and the last ex delicto and in case. This latter count predicates the plaintiff’s right of recovery, not upon a breach of a contract by defendant, but upon the breach of its common law duty as a public carrier, for its failure to deliver this message within a reasonable time.

To show that this is clearly the import of the count and was so intended by the pleader, we have only to call attention to the difference between its phraseology* and that of the other counts. As said in Western Union Telegraph Company v. Krichbaum, 132 Ala. 538, “The plaintiff had the right to frame the count either in assumpsit or case. He could have maintained the former by relying upon a breach of the contractual obligation to deliver the message for a recovery; the latter by relying upon a breach of duty in failing to deliver it, whether that duty arose out of the contract or is imposed by law. * * * Independent of a promise by defendant to deliver the message when it accepted it for transmission, the law imposed the duty upon it of transmitting and delivering it with all reasonable diligence.” — 25 Am. & Eng. Ency. Law, (1st ed.), 778, 780. No promise on the part of the defendant to deliver the telegram is here alleged, and, therefore, no breach of promise is counted upon. But, as we have said, on the facts alleged the gravamen of the count is clearly for a breach of duty imposed by law. The demurrer interposed to the complaint for misjoinder of counts should have been sustained- — Morris v. Eufaula Bank, 122 Ala. 580. Furthermore, the count was subject to that ground of demurrer challenging its sufficiency for its failure to claim anv damage to the person or estate of the plaintiff. Blount v. W. U. T. Co., 126 Ala. 105; W. U. T. Co. v. Blocker, 138 Ala. 484.

*657For the same reason charge number 1 requested by defendant should have been given. Oases cited sup-a.

The court also erred in sustaining the demurrer to the defendant’s plea numbered 4. — W. U. T. Co. v. Young, 138 Ala. 240.

As we are unable to determine in advance what course will be adopted by plaintiff to conform his pleadings, if he may bé so advised, to the principles here announced, it is unnecessary to consider the other assignments of error.

Beversed and remanded.