Western Union Telegraph. Co. v. Saunders

51 So. 176 | Ala. | 1909

Lead Opinion

EVANS, J.

There are 52 assignments of error in this record. The first assignment is to the overruling of defendant’s demurrer to the complaint. The appellant contends in his brief, in arguing this proposition, first, that “the averment that the plaintiff lost the amount paid for the transmission and delivery of the message is contradicted on the face of the complaint.” We do not think that the complaint is subject to this criticism. A person may recover damages for undue delay in transmitting and delivering a telegram, caused by the negligence of the company undertaking the transmission and delivery of the message for hire and reward paid by him, although the message may, after damage has been sustained, be delivered. In other words, the defendant cannot be allowed to say, after undue delay in transmitting and delivering, caused by its negligence, from which damage resulted, “I did finally deliver the message, and therefore you have not lost the consideration paid.”1 If /the contract was to deliver-promptly, or if the law imposed the duty of delivering promptly, a delivery after undue delay is not a compliance ; and if the undue delay is caused by the negligence of the company undertaking the transmission and delivery, and damage to the person, reputation, or estate of the party contracting with such company results as a proximate result .thereof, such party may recover for such actual injury, and also in a proper case for injury to feelings. — W. U. T. Co. v. Westmoreland, 150 Ala. 654, 43 South. 790; W. U. T. Co. v. Wilson, 93 Ala. 34, 9 South. 414, 30 Am. St. Rep. 23.

The second contention of appellant with reference to-the demurrer to complaint is that the facts averred are insufficient to establish negligence which could proximately result in the damages claimed. As said by McClellan, C. J., in the case of Postal Tel. Co. v. Jones, 133 Ala. 225, 226, 32 South. 502: “There is no merit in the contention for appellant that the complaint did .not aver the negligence counted on with sufficient particularity. The rule is that, the duty to exercise due care being shown, the failure to perform that duty, the negligence causing the injuries complained of, may well be averred in the most general terms, little, if at all, short of the mere conclusions of the pleader; and this upon the entirely sufficient consideration, among others, that if the defendant has been guilty of negligence he knows, as well as or better than the plaintiff can, in what that negligence consisted” — citing numerous authorities.

The second assignment of error by appellant is to the ruling of the court in sustaining demurrer to the third plea. There are eight grounds of demurrer. ■. The first three grounds are clearly not good, for the reason that the plea must be read in the light of the complaint, and, so reading it, the allegations are sufficient to show that plaintiff was a party to the written telegram. In other words, the complaint does not state whether the telegram was verbal or in writing, but does state that the plaintiff sent it. The plea states that the message sued on was in writing, etc. The message sued on was a message alleged in the complaint to have been sent by plaintiff, and said plea must be construed as confessing that it was. That the plea is not subject to the fourth ground of demurrer needs no argument, as it is clearly not a conclusion of the pleader, but sets up facts. Ground 4a is probably not what the plaintiff intended to say, but, as it is, it is clearly not a good ground of demurrer, as the matters therein alleged could not have been a consequence of defendant’s failure to deliver said telegram, and, it would be immaterial if they were. Ground 4b is not good, for the reason that the message and the contract for sending same are alleged in the plea to be in writing. If this is so, the plaintiff was charged with notice of what the contract contained. The fifth ground was a general demurrer, and could not be considered.

In considering the sixth ground of demurrer, it is proper to state the said plea sets up three several defenses, as follows, after first setting up, by way of inducement, the terms of the written contract upon which defendant undertook to send said message: (1) That said message was not ordered to be repeated; (2) that said message was not insured, within the meaning of the provisions of the written contract; (3) that said message was in fact delivered to the said sendee in less than two hours after its receipt for transmission. The sixth ground of demurrer was directed to the last defense set up, and was as follows: “For that the fact set up in said plea, That said message was in fact delivered in less than two hours,’ does not necessarily as matter of law show due diligence.” This plea at common law would have been subject to special demurrer, but not so under our system. — Cannon v. Lindsey, 85 Ala. 198, 3 South. 676, 7 L. R. A. 38; Ewing v. Shaw, 83 Ala. 333, 3 South. 692. Where the plea is double, and one defense set up is good, and the other is bad, the plea is not subject to demurrer on account of the bad defense attempted to be set up. A motion to strike out the imperfect part is the proper practice. — Bolling & Sons v. McKenzie, 89 Ala. 476, 7 South. 658. But where the plea is double, and each several defense attempted to be set up therein is imperfect, and the ground of demurrer is directed to only one defense set up in the plea, can the court properly sustain the demurrer? The entire court, with the exception of Justice Anderson and the writer of this opinion, are of opinion that in such a case it is proper to sustain the demurrer; and therefore this court holds that the lower court was without error in sustaining the demurrer to plea 3, on the sixth ground thereof. It needs no argument to show that a negligent delay in the transmission and delivery of a telegram for two hours might work great damage, for which the company undertaking to transmit and deliver same might be held liable. It is equally true that the other two defensés set up could not stand the test of a proper demurrer, for they fail to negative the negligence of the defendant alleged in the complaint. — Western Union Tel. Co. v. Way, 83 Ala. 555 — 556, 4 South. 844.

The third assignment of error, not being. argued in appellant’s brief, is treated as waived.

So far as insisted on in the brief of appellant, the .other 48 assignments of error relate to three propositions: (1) The time and manner of the delivery of the message to the defendant for transmission and delivery.-(2) The payment by plaintiff of the sum of 25 cents to the defendant for transmission and delivery of said message. (3) As to whether or not relation of the sender, the sendee, and the person about whom the message was sent was such as would sustain damages for mental anguish. We shall undertake to dispose of these assignments of error by a statement and -discussion of the evidence as it relates to these three propositions, all of which, and every part of which was offered by plaintiff, and every part of which Avas objected to by defendant, and exceptions to the adverse ruling of the court were - duly reserved. Motion was made to rule out each pari of said testimony, and exception was reserved to the refusal of the court to grant such motion. Motion was made to rule out all of the testimony of the plaintiff as to what Mr Stillwell spoke into the receiver of the telephone, and exception was duly reserved hy defendant to the refusal of the court to grant such motion.

The evidence tended to show that K. D. Saunders, the plaintiff in the case, Avas on the 12th day of September, 1905, and had been for some time prior thereto, living in the city of Birmingham, Ala. At said date and for some time prior thereto his mother-in-law, Mrs. G. T. Cross, Avas living in Ft. Payne, Ala. At said date the said Saunders had a child about 10 months old, Avho for some time had been sick Avith typhoid pneumonia. The said Saunders Avas the father of the child, and the said Mrs. Cross Avas its grandmother. At some time prior to said 12th of September, plaintiff had communicated with his said mother-in-law by letter about coming to see the haby on receipt of a telegraphic message, if one was sent. On said morning of September 12th the said Mrs. Cross, in anticipation of such a message, had closed up her house and was sitting on the doorsteps ready to go at a moment’s notice. At 6.:10 a. mi on September 12th, the baby having grown suddenly worse, the plaintiff went into the office of the paymaster of the Birmingham Pipe & Casting Company, of the city of Birmingham, and paid Mr. Stillwell, the paymaster in said office the sum of 25 cents, and asked him to telephone to the defendant, the Western Union Telegraph Company, the following message to be transmitted and delivered to the said Mrs. G. T. .Cross, at Ft. Payne, Ala.: “Baby is worse, come at once.” The said Mr. StillAvell thereupon picked up the receiver of the telephone, and called a certain number, Avhich witness, the plaintiff, did not knoAV Avas the office number of defendant, and spoke into the phone the message to be transmitted to Mrs. G. T. Cross at Ft. Payne, Ala.: “Baby is worse, come at once.” At 8:30 o’clock on the morning of September 12, 1905, the agent at Ft. Payne, Ala., received a message for Mrs. G. T. Gross and delivered the same to her son, who came for it, somewhere from 9.:03 to 9:30 o’clock of said morning. The evidence further tended to show that by reason of the delay in transmitting and delivering said telegram Mrs. Gross missed the train on said morning and was delayed 14 or 16 hours in reaching the bedside of her grandchild. This telegram was introduced in evidence, but the bill of exceptions fails to state its contents. We will therefore presume that it was identical as to the verbiage with the words spoken by Mr. Stillwell into the phone. It was shown- that said telegram had the following-written upon it: “1 B. M.also-, “Sent by K.,” also, “received by R. A.also “5 pd.” These were explained by witness as follows,: “‘1 B. M.’ was the call of office. ‘Sent by K.,’ that was a fellow by the name of Whitfield. ‘Received by R. A.,’ Mr. Rippy, defendant’s agent at Ft. Payne, signs ‘R. A.’ He is now sitting in the court room with defendant’s counsel. ‘5 pd’ means that the message contained five words and was paid— not to be collected for at the Ft. Payne office of defendant.”

The first question to be considered is: Should the plaintiff, against the objection of defendant, have been allowed to testify, in his own behalf, as to what Mr. Stillwell did about telephoning- for plaintiff; and should not that part of the evidence of plaintiff have been ruled out on motion of defendant? After a careful consideration of the proposition, a majority of the court are of opinion, and so decide, that the subsequent evidence of the delivery to the sendee of a message like the one said to have been spoken into the telephone by Mr. Stillwell made the said evidence of plaintiff admissible, and that the court below did not err in admitting the same, or refusing to rule it out.

As to the second proposition, viz., the payment by plaintiff of the sum of 25 cents for the transmission and delivery of the telegram, the court is of the opinion that the evidence of plaintiff that he paid Mr. Stillwell 25 cents to pay to defendant for transmitting and delivering said telegram, when taken in connection with the evidence which tended to show that the message when delivered to the sendee was marked “Paid,” was admissible to show that the message was paid for by plaintiff. The court takes judicial knowledge of the fact that telegraph companies in this state make 25 cents a minimum charge for transmitting and delivering messages the distance from Birmingham, Ala., to Fort Payne, Ala.

The third proposition before mentioned was whether the relation of the sender, the sendee, and the person about whom the message was sent was such as to entitle the plaintiff to recover damages for mental anguish. Was the relation such as to raise the presumption of law that the sender suffered mental pain and anguish by' reason of the absence of the sendee from the bedside of his child, who was very ill? In the well-considered case of Western Union Telegraph Co. v. Crocker, 135 Ala. 496, 33 South. 45, 59 L. R. A. 398, where the relation of the parties, so far as kinship is concerned, was exactly the same as in this case, in rendering the opinion of the court, Justice Dowdell — now Chief Justice — said in speaking of the relationship of mother-in-law and son-in-law. : “It is the closest of all relationship by affinity, and from which, if love and affection do not naturally spring, it is on account of some exceptional reason or cause; a love, too, that is strengthened in the birth of a grandchild. .The tender and doting love of the grandmother for her grandchild, and the reciprocal confiding love of the little child, is a matter of common knowledge. * * * We are of opinion that the relationship between the sender and sendee, and the person named in the message, is such as to warrant the recovery for mental suffering’ and anguish.” It would seem from the above matter in quotation marks that mental pain and anguish of the father, under the kinship relations, was to be inferred as matter of law, and if there was “some exceptional reason or cause” in any case why the father, under such circumstances, would not be comforted by the presence of the child’s grandmother, his mother-in-law, or subjected to mental pain and anguish by her.absence, it was matter of defense.

It was entirely proper for the plaintiff to prove the meaning of the indorséments made on the telegram by the receiving agent in the regular course of his business as agent for the company.

Affirmed.

Dowdell, C. J., and Anderson, McClellan, and Mayfield, JJ., concur. Simpson, Sayre, and Evans, JJ., dissent.

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Dissenting Opinion

EVANS, J.

(dissenting). — From the foregoing opinion, written by myself in accordance with the views of a majority of the court, Justice Anderson and myself dissent from conclusion reached by the other members of the court- in sustaining the sixth ground of demurrer to the third plea; while Justices Simpson and Sayre and myself dissent from the view taken by the other members of the court in sustaining the action of the lower court in admitting, and refusing to rule out, that part of the testimony of plaintiff wherein he testified to what Mr. Stillwell spoke into the telephone in his office at 6:10 a. m. on September 12, 1905'. Í shall respectfully undertake to set forth my reasons for dissent upon both of these propositions.

1. Should the sixth ground of demurrer to the third plea have been sustained? The plea, after setting up, by way of inducement, the alleged contract in writing, upon which the message was alleged to have been sent; then sets up three several defenses: (1) That said message was not ordered to be repeated; (2) that said message was not insured, Avithin the meaning of the written contract; (3) that said message was in fact delivered to the said sendee in less than two hours after its receipt •for transmission. The sixth ground of demurrer only ■challenges the sufficiency of the third defense set up by said plea.

At common law this plea would have been subject to special demurrer for duplicity; but under our system two or more defenses may be set up in the same plea, and when so set up, and issue is joined thereon, all must be proved, Avhether they be good or bad. — Walter v. Alabama Great Southern Railroad, 142 Ala. 482, 39 South. 87. Where two defenses are set up in the same plea, one of Avliich is good and the other bad, the bad defense cannot be eliminated by a demurrer directed thereto, but only by motion to strike out the imperfect part. — Bolling & Sons v. McKenzie, 89 Ala. 476, 7 South. 658. If a defendant sets up in his plea- two defenses, and the plaintiff’s demurrer fails to point out any defect in one of the defenses, or even to challenge its sufficiency in any Avay, does he not thereby admit its sufficiency, and cafi the court ex mero motu declare that the other defense is bad? Can the, court declare any defense bad which is not objected to by the plaintiff? Not only the court cannot ex mero motu so declare it, but the particular defect of the defense must be pointed out. It is evident to my mind that a demurrer to a double plea, pointing out defects in each defense set up would be a good demurrer, and should be sustained. If a demurrer to a double plea went to only one defense set up, it should not be sustained, for the reason that it does not go to the wholé plea, but leaves one defense unchallenged. As long as a defense is unchallenged by demurrer pointing out the defect, the court should treat it as a good defense, unless it is stricken, in proper case, upon motion of plaintiff. For the foregoing reason, we do not think the court below Avas without error in sustaining demurrer to third plea.

2. Should the evidence of plaintiff, testifying as a witness for himself, as to the telephoning by Mr. Stillwell, have been admitted to shoAV the time and manner of the delivery of the telegram to the defendant, or should it not have been ruled out on motion of plaintiff, when as defendant contends, it was not by any subsequent evidence made legal? On the examination each question was objected to, and motion made to rule out the answer, and exception was taken to the adverse ruling of the court. We suppose that it would not be contended by any one that said evidence was admissible as tending to prove the manner and time of delivery of the telegram by plaintiff to the defendant for transmission and delivery, except for the evidence tending to show that a like telegram was subsequently delivered by the défendant to the sendee. Such I understand from the bill of exceptions to have been the opinion of the trial court, and such I understand to be the opinion of my Brothers who agree with the-ruling of’ the trial court. According to- this view, then, if the defendant had not delivered the telegram, which it did deliver, to the sendee, the evidence about the telephone transaction would have been inadmissible for any purpose.

“Telephone conversations, in so far as concerns their admissibility in evidence, are in the main governed by the rules of evidence which govern the admission in evidence of oral statements made in an ordinary con-. versation, except, of course, the necessity of identification of the party against whom the conversation is sought to, be used.” The above quotation taken from Encyclopaedia of Evidence, vol. 12 p. 477, refers to cases where one of the parties to the conversation is testifying. “A telephone conversation, being shown by other competent evidence to have been between the parties to the action and upon the subject-matter of the litigation, may be testified to by a bystander so far as he heard it.” — Encyclopaedia of Evidence, vol. 12, p. 478. The last matter in quotation marks states the law that is applicable to the case sub judice. The witness here was a bystander, and there is no “other evidence” at all to show that, at the time Mr. Stillwell was speaking into the receiver of his phone, his phone was connected with the office of defendant, or that he was speaking to any one. The fact that a like message was received at defendant’s Ft. Payne office some hours afterwards cannot supply the necessary evidence which must be produced in order to make the evidence of the telephone transaction admissible, because no inferences arise therefrom which could in any manner tend to show that the message was received by defendant for transmission and delivery at that time and in that manner. What presumptions of fact arose from the receipt of the message at the Ft. Payne office of defendant as to the time and manner of its receipt at the Birmingham office for transmission and delivery? Certainly there is no other evidence in the case to support the admissibility of the evidence of the telephone transaction, except the legal inferences and presumptions arising from the receipt of the message at the Ft. Payne office. We think that the only presumption or inference that the law could indulge would be in defendant’s favor on these points, to wit, that the message was delivéred to the Birmingham office by plaintiff, or some one by him duly authorized, and was promptly transmitted to the Ft. Payne office, as was defendant’s duty to do. Supposp that its receipt at the Ft. Payne office and the presumptions arising therefrom was all the evidence as to the time and delivery of the message to defendant for transmission; what would it tend to prove? Would it tend, in the slightest degree, to prove that defendant had had, several hours before, a telephone communication from plaintiff or his agent by which the message was delivered to plaintiff for transmission? The question answers itseif. Suppose we take the other end of the propositions. What presumptions or inferences of fact, arise against defendant from the fact that plaintiff asked Mr. Stillwell to telephone to defendant and that the said Stillwell picked up the receiver of the telephone, called a number not shown to be defendant’s number and spoke into the telephone certain words? There is no presumption or inference of law, arising from such facts, that said message even went further than into the receiver of Mr. Stillwell’s phone. The presumptions and inferences arising from the two matters proven in no way connect the one with the other, but, on the contrary, tend to disprove, rather than prove, any such connection.

For the' foregoing reasons, we think the evidence as to the-telephone transaction should have been ruled out, when plaintiff failed to introduce evidence tending to show that, at the time Mr. Stillwell was talking into his phone, it was connected with the offilce of defendant, and that he was speaking to some one in that office.

The authority which counsel for appellant relies upon as authority for sustaining the action of the lower court in admitting said evidence and refusing to rule it out is the case of Western Union Telegraph Co. v. Rowell, 153 Ala. 295, 45 South. 80, decided by this court Justice Denson writing the opinion. The facts in the case cited, as stated in the opinion of the court, were that Rowell, the plaintiff, called over the phone for connection with the Western Union Telegraph Company of Montgomery, and had a conversation with the person who answered the phone after connection was given. The plaintiff did not know who the person was who talked with him over the phone. The plaintiff in that case did the phoning for himself, and was testifying as to the connection with the Western Union Telegraph Company, and the conversation had by him with the person at the other phone, which had been connected by the central phone office with the phone into which he was speaking. We fully agree with the opinion of the court in that case, but it is- entirely different from the case sub judice in the legal principles involved. In that case the person who did the telephoning was the witness. In this case a bystander is the witness. In that case the person doing the telephoning asked the central office to connect him with the Western Union Telegraph Company’s office, and connection was given presumably with that office, and the witness knew that some one came to the phone and answered the call. In this case a bystander testifies that Mr. Stillwell called for connection with a certain number; and it is not shown what that number was, nor that it was the number of the defendant company. In that case it was shown that some one answered the phone. In this case it is not shown that any one answered the phone. If the plaintiff in this case, who whs testifying for himself, had any information that Mr. Stillwell’s phone was connected with the Western Union Telegraph Company’s office, it was because Mr. Stillwell told him so, and it was mere hearsay and was inadmissible. That case was, in no sense, an authority for the ruling in this case.

For the foregoing reasons, we think that the case should be reversed and remanded.