72 So. 356 | Ala. | 1916
This action is to recover damages for delay in the delivery of a.telegram which'announced the death of plaintiff’s mother and summoned him to her burial. The message was to be sent from Whitwell, Tenn., to Adger, Ala. It seems that defendant had no office or telegraph instruments at either Whit-well or Adger. The message was sent from Whitwell to Chattanooga, Tenn., by phone, and from Chattanooga to Birmingham, Ala., by telegraph, and from Birmingham to Adger by phone. The main defense offered for the delay in delivery was the fact that defendant had no office at Adger, and that the phone office or station, at Adger, used by defendant for the reception and delivery of messages to be sent from that point, and of messages to be delivered there, as was the message in this case, was not kept open on Sundays; it being Sunday when the message in question should have been delivered at Adger. There appears to have been no delay until the message reached the defendant’s Birmingham office, and the excuse for the delay there was that stated above. The facts that defendant had no telegraph office at Adger, and that is did not control the phone, and therefore could not promptly deliver the message — the day of delivery being Sunday — constitute the basis of the chief defense; it being conceded that the message did not reach Adger until the morning following the Sunday on which it should otherwise have been delivered. Was this a defense, applied to the issues and the facts in this case?
The telephone is at present much used by the public and by telegraph companies in sending and delivering telegraphic messages. The prime purpose of such messages is speed and quickness in the transmission and delivery thereof; and to this end, telephones at the termini of telegraph lines, for the purpose of both forwarding and receiving telegrams, are much used, because they facilitate the business and aid in the quick transmission of message from sender to sendee — the great object to be attained in telegraphy. — Joyce on Elec. Law, § 740a.
While counts 2 and 4 do not allege in terms that plaintiff or his agent paid money to defendant when it undertook to send the message, they do allege that he paid money for the delivery of the message.
First. An undisclosed principal may sue on a contract made by an agent. — W. U. T. Co. v. Millsap, 135 Ala. 415, 33 South. 160, and cases cited; Manaker v. W. U. T. Co., 137 Ala. 292, 34 South. 839; W. U. T. Co. v. Manker, 145 Ala. 418, 41 South. 850.
Second. Where there is a right of recovery of anything else on the contract, a recovery may be had in addition for mental anguish. — W. U. T. Co. v. Krichbaum, 132 Ala. 535, 31 South. 607; W. U. T. Co. v. Henderson, 89 Ala. 510, 518, 519, 7 South 419, 18 Am. St. Rep. 148; W. U. T. Co. v. Northcutt, 158 Ala. 557, 48 South. 553, 132 Am. St. Rep. 38.
85 ANDC Whitwell Tenn 7-27th-13
Mr Geo Hicks
Adger Ala.
Your mother is dead come at once
Joe Hicks
1147 AM.
There was no possible error or injury in overruling the demurrers to the complaint.
Receiving such a message for transmission, showing on its face, as it did, the demand for speedy action, it was the duty of the agent to inform the sender that it could not be delivered on Sunday, if she had such knowledge; and her want of such knowledge was, at best for the defendant, only an excuse for accepting and agreeing to transmit with reasonable speed, and surely if it could not be transmitted or delivered on the day it was sent its delivery could not be said to be within a reasonable time. Such has been the repeated holding of this court, and we think it sound.
The Court of Appeals has made a specific ruling as to a plea very similar to the one in question, and in a case very similar, which decision is well stated in a headnote as follows: “A plea alleged that A., the place of delivery of a message was a small town with office hours from 7 a. m. to 5 p. m.; that the message was given defendant at L. after 5 o’clock and was received by the office at A. at 9 o’clock of the next morning, when it was promptly carried to the place of business of the sendee, and on ascertaining that he had left A. the sender was promptly so informed. Held, demurrable as not showing that the receiving agent did not know the office hours at A. and not showing prompt transmission the following day.” — W. U. T. Co. v. Sledge, 7 Ala. App. 650, 62 South. 390.
Defendant’s agent testified, in part, as follows: “I simply received the message over the phone and turned it over to the operators, and they sent the message. We had in our office there the guidebooks of the Western Union, showing where the Western Union Telegraph Company has offices. I looked in this guidebook to see whether or not I could send this message to Adger. I found that we could send the message; that we had a phone there; found that we had an office there. No sir, I did not notify Mr. Hicks that there was any doubt of being able to get the message there. No, sir; I did not tell Mr. Hicks that I could get the message off right away; he did not ask me. Well, I just taken the message and asked what the telephone number was there, and he said 37, and he told me the message, and I said, ‘Who is sending the message?’ and he said, ‘J. Hicks.’ I looked at the book afterwards, before I sent the message. The book just showed we had an office at Adger. I didn’t know it was a regular office. I thought it was, yes, sir, an exchange. No, sir; there were no marks on the book to show it was a regular office, an exchange, or a Sunday office; it showed we had an office at Adger. I did not find out that the office at Adger was closed.”
There are a number of exceptions as to rulings on the admission and the rejection of evidence. They have each been carefully examined, and all are found to be without merit.
There is no new question involved in any of the assignments, and no good can come of a discussion of the questions. We feel sure that there was no reversible error as to any of such rulings-
Affirmed.