59 So. 757 | Ala. Ct. App. | 1912
The value of a rule of law depends, generally speaking, as much upon its stability and known certainty as upon its wisdom. The stability of business depends upon the stability of the laws under Avhich it is conducted, and nothing can more readily cre
In some cases the facts are such that it is difficult to determine Avhich of two well-recognized and clearly defined, although opposite, rules — the application of one of which will lead to conclusions entirely different from the conclusions which Avould have followed if the other rule had been adopted — shall be applied to such facts. The fact, however, that there are such border line cases in no way affects the truth of what we have above said.
We make the above observations because of the attack that is made by appellant upon some of the rules governing cases like the present, which have been definitely declared by the Supreme Court.
First. That the sendee of a telegram may maintain an action ex contractu against a telegraph company for failure to deliver, or for delay or for other negligence in the transmission or delivery of, the telegram when he is a party to the contract.
Second. That the sendee of a telegram may also maintain an action ex contractu against a telegraph company for such failure, delay, or other negligence, when he is the sole party to be benefited by the telegram, although he is not a party to the contract, provided the telegraph company, when it received the telegram for transmission, 1mew, or the telegram disclosed,
Third. That the sendee of a telegram may maintain a special action of trespass on the case (an action ex delicto) in the above two instances, and also when he is a substantial beneficiary — not the sole beneficiary — of such telegram, and the telegraph company, when it receives the telegram for transmission, knows, or the telegram shows, that it is sent for the benefit of the sendee.
Fourth. That, in a special action of trespass on the case for delay in delivery, or for nondelivery, or for negligence in the transmission or delivery, of a telegram the sendee cannot recover for mental pain and anguish, unless there is a right of recovery aside from such injuries. — Western Union Telgraph Co. v. Ella Brown, supra.
The above rules were announced by the Supreme Court of Alabama in the following cases: McGehee v. Western Union Telegraph Co., 169 Ala. 109, 53 South. 205, Ann. Cas. 1912B, 512;. Western Union Telegraph Co. v. Adams, 154 Ala. 657, 46 South. 228; Postal Telegraph Co. v. Ford, 117 Ala. 672, 23 South. 684; Heathcote v. Western Union Telegraph Co., 156 Ala. 339, 47 South. 139; Western Union Telegraph Co. v. Blocker, 138 Ala. 484, 35 South. 468; Western Union Telegraph Co. v. Jackson, 163 Ala. 9, 50 South. 316.
The telegram shows on its face that it is a business message from a manufacturing company to a business correspondent. It plainly contains an offer on the part of the sender to sell to the sendee certain goods at a fixed price. The acceptance or rejection of the offer was a matter of business importance to both parties. It shows that its prompt and proper transmission and delivery — the last words in the telegram are “quick reply,” showing that the offer was for immediate acceptance or rejection — was a matter of importance to both its sender and its sendee. While the Supreme Court, on the former appeal (Anniston Cordage Co. v. Western Union Telegraph Co., 161 Ala. 216, 49 South. 770), declared that the telegram did not, on its face, apprise the telegraph company of the fact that its sendee was beneficially interested in the telegram, nevertheless the telegraph company had knowledge of the fact that the appellee was beneficially interested in it, because the telegram of the Trio Manufacturing Company to appellee was in reply to a message theretofore sent by appellee to said Trio Manufacturing Company, inquiring for quotations on said goods, which message was received and transmitted by the employees of the telegraph company to the Trio Manufacturing Company while acting within the line of their employment. — Western Union Telegraph Co. v. Williford (Tex. Civ. App.) 27 S. W.
The fact that the appellee, through the appellant, its agents or employees, while acting in the line of their employment, sent a message to the Trio Manufacturing Company asking for quotations on the goods, and that, through the appellant, its agents or servants while acting within the line of their employment, the Trio Manufacturing Company, in reply to said message of inquiry of appellee, sent to appellee the message giving to it the quotations on the goods, was, taken in connection with the contents of the message itself, sufficient notice to appellant that the telegram was for appellee’s benefit.— Erie Telegraph & Telephone Co. v. Grimes, 82 Tex. 89, 17 S. W. 831
It follows that the appellee had such an interest in the telegram, and appellant such knowledge of appellee’s interest, when it was delivered to it by the Trio Manufacturing Company for transmission and delivery, as will support a special action of trespass on the case by appellee against appellant for the damages sustained by it as the natural and proximate result of any negligence committed by the agents of appellant in the transmission of the telegram, and which flowed from such negligence in the usual course of things. — Western Union Telegraph Co. v. Albertville Canning Co., Infra, 59 South. 755; Western Union Telegraph Co. v. Brown, supra; Anniston Cordage Co. v. Western Union Telegraph Co., supra; Western Union Telegraph Co. v. Jackson, 163 Ala. 9, 50 South. 316; Frazier v. Western Union Telegraph Co., supra.
The above is true without regard to whether the telegram was repeated or not. A telegraph company cannot, by stipulations printed on the blanks on which messages are required to be written, exempt itself from lia
In the present case the goods had been shipped to appellee before the mistake in the telegram was discovered. The complaint, as amended, shows this fact, and that loss, to some extent, on account of appellant’s mistake, wa§ inevitable to' appellee. — Pepper v. Western Union Telegraph Co., 87 Tenn. 554, 11 S. W. 783, 4 L. R. A. 660, 10 Am. St. Rep. 699; J. A. Shingleur & Co. v. Western Union Telegraph Co., 72 Miss. 1030, 18 South. 425, 30 L. R. A. 444, 48 Am. St. Rep. 604.
Accepting the allegations of the complaint, as last amended, as true, the natural and proximate result of appellant’s mistake in transmitting the message was pecuniary loss to appellee. This being' true, and appellee’s dilemma being traceable to the fault of appellant, the appellee had the right to extricate itself by adopting that course which, under all the circumstances, would entail upon it the smallest loss. There is nothing in this record indicating that it did not do so, and, to quote the language of the Supreme Court of Tennessee in a case which seems to have been followed by many courts of last resort, “where the conduct of the party injured in his efforts to extricate himself from loss does not appear to have been impovident, nor in bad faith, and the loss is shown from such conduct, the burden of proof is upon the author of the wrong to show that the loss might have been mitigated by a different course of conduct, which a reasonably prudent man ought to have taken.” — Pepper v. Western Union Telegraph Co., su\pra.
While the acceptance of the goods by appellee at 16% cents per pound after the discovery of the mistake in the telegram constituted a new purchase — in fact, the only purchase — of the goods, this purchase was necessitated by the negligence of appellant, as no one can say that appellee would have ordered the goods from the Trio Manufacturing Company if their true price had been known when the order to ship was given. — Shingleur & Co. v. W. U. Telegraph Co., supra.
Among other statements in the special finding of the facts, we find the following as one of the special findings : “The loss to plaintiff was one cent per pound by reason of the error in the telegram, amounting to $298.87.”
The judgment of the court below is affirmed.
Affirmed.