62 So. 250 | Ala. Ct. App. | 1913
The complaint as originally filed by the appellee sought a recovery against the appellant and the Great Southern Agency Company, a corporation, as joint defendants, and contained six counts.
Count 6 was amended by striking out the Great Southern Agency Company as a party defendant, leaving the appellant as the sole party defendant. This count as amended alleges that the defendant telegraph company received at its office at Chattanooga, Tenn., from the Great Southern Agency Company the following telegram, to be transmitted over its wires to Good-water, Ala., viz.: “Oct. 9,1909. J. H. Davis and A. W. Cohn, c/o Pope Hotel, Goodwater, Ala. Will honor your draft for $69.00. Great Southern Agency Co.”
It is averred that this telegram was not transmitted by the defendant telegraph company, hut that in lieu of transmitting said telegram as above set out two separate telegrams were transmitted, one to A. W. Cohn and the other to J. H. Davis, which said telegrams, respectively, were as follows: “Chattanooga, Tenn., Oct. 9, 1909. A. W. Cohn, c/o Pope Hotel, Goodwater, Ala. Will honor your draft for $69.00. Great Sou. Agency Co.” “Chattanooga, Tenn., Oct. 9, 1909. J. H. Davis, c/o Pope Hotel, Goodwater, Ala. Will honor your draft for $69.00. Great Sou. Agency Co.”
The demurrers filed to the sixth count of the complaint as amended are not well taken; for, while this count shows that there was no contractual relation or privity between the plaintiff and the defendant telegraph company authorizing a recovery grounded on the contract or growing out of a breach of duty imposed by and based on the contract (Anniston Cordage Co. v. Western Union Telegraph Co., 161 Ala. 216, 49 South. 770, 30 L. R. A. [N. S.] 1116, 135 Am. St. Rep. 124), it alleges facts setting up a cause of action for which the defendant would be liable, in that it avers its injury and loss was occasioned without fault upon its part through the tortious act of third parties who were furnished the efficient means to accomplish this object by the wrongful acts of the defendant. “The law simply utters the suggestion of common justice and common sense in declaring That, when one of two innocent persons must suffer from the tortious acts of a third, he who gave the aggressor the means of doing the wrong must bear the consequences of the act.’ — Bank of Ky. v. Schugkill Bank, 1 Pars. Eq. Cas. [Pa.] 248;” Young & Son v. Lehman, Durr & Co., 63 Ala. 520, 524.
The appellant insists that the proof offered in support of the sixth amended count was not sufficient to authorize a recovery for a fraud or deceit, and that the court was in error in refusing the general charge requested by it. But it is'sufficient answer to this contention to say that the plaintiff’s right of recovery does not depend upon proof of a motive, intention, or desire upon the part of the defendant to deceive.or perpetrate a fraud on the plaintiff, or to enable a third party to do so. The facts as stated in the count of the complaint
The message filed with the defendant company, as we construe it, Avas an authorization to the two individuals named therein as addressees to draAV a joint draft on the sender for the amount stated. The message when transmitted and delnmred Avas an invitation to the plaintiff or to any bank in the neighborhood of Good-water, to discount or cash the draft drawn on the sender of the message. — Young & Hon v. Lehman, Durr & Co., supra. By splitting up the message and sending separate messages, the defendant furnished the means by Avhich the sendees were enabled to induce the plaintiff as a natural consequence of the defendant’s act to discount the drafts, and any injury thereby suffered as a proximate consequence by the plaintiff Avould be due to the invitation furnished by the message for Avhich the defendant Avas responsible and for AAdiich it Avould be liable.
The bill of exceptions shoAVS that the message filed by the Great Southern Agency Company Avith .the defendant’s agent at its office in Chattanooga for transmission to GoodAvater, .Ala., Avas produced on the trial by the defendant in response to a notice to produce by the plaintiff, and Avas as follows: “Chattanooga, Tenn., 10/9, 1909. To A. W. Cohn and J. H. Davis, c/o Pope Hotel, Goodwater, Ala. Will honor your draft for $69.00. Great Southern Agency Co.” Defendant’s
Under this state of facts there was no error in refusing the general charge requested by the defendant, but the court might properly, we think, have given the general charge for the plaintiff.
The plaintiff being entitled upon the whole case to the general charge, it is unnecessary to consider other assignments of error. — Western Union Telegraph Co. v. Krichbaum, 145 Ala. 409, 41 South. 16; Emmett v. Hooper, 157 Ala. 586, 47 South. 1006; Birmingham Co. v. Rutledge, 142 Ala. 195, 39 South. 338.
The assignments of error are not well taken in any particular, and the judgment appealed from will be affirmed.
Affirmed.