83 Ala. 542 | Ala. | 1887
— The appellee brings the suit, to recover damages for the alleged negligent omission to forward a message addressed “Victoria, Bremen,” which he delivered at the office of the appellant in Montgomery, June 14, 1884, . for transmission. The message was intended for Johannes Eoth, who resides in Bremen, Germany, Victoria being a cipher used to represent his name; and was a responsive acceptance of an offer to buy cotton, made by a cablegram which plaintiff received from him on the same day.
The complaint, as originally filed, contained but one count. More than a year after the commencement of the suit, it was amended by the addition of two other counts, to the first of which the defendant pleaded the statute of limitations, basing the defense on the ground that the count introduced a new cause of action. The original complaint alleges, that Both’s offer was to buy one thousand bales of cotton, but was intended to be, and was in fact, an acceptance of a previous proposition made by plaintiff to sell thirty-five hundred bales. The amendment avers a direct and positive offer to purchase thirty-five hundred bales. The message in response, and in acceptance of the offer, and the failure to forward which constitutes the causes of action, is substantially the same as set forth in both the original and amended complaint. The difference in the counts consists in the mere manner of stating Both’s proposal, which was the inducement to sending the message. There are also averments of other and additional special damages. The cablegram containing the offer does not enter into, nor constitute a part of the real cause of action, and is only material as affecting the amount of recovery, not the right to recover. The amendment varies the descriptive allegations of matter alleged as inducement, but does not introduce new matter, or a cause of action not already in issue. It was allowable under our statute, and related to the commencement of the action. — Ala. Gr. So. R. R. Co. v. Arnold, 80 Ala. 600.
A repetition of the message was not required or requested; it was in cipher; and a written claim for damages was not presented within sixty days after the failure of the company to forward it. It was never forwarded, but by some inadvertence was placed in the receptacle of messages sent, and was checked as such. It is contended that the reception of the message for transmission was matter of contract, the terms and conditions of which regulate the duty and measure the liability of defendant; and that the company being in the performance of a duty voluntarily undertaken, and the negligence not being gross nor willful, the terms and conditions exonerate the defendant from liability for damages beyond the amount of the charge. Many authorities are cited by counsel to sustain the reasonable character of these, and similar terms and conditions, which, however, it is unnecessary for us to consider; for, if their reasonableness be conceded, before this arises another question — whether, on a proper construction, they govern and measure the liability of the company under the circumstances shown by the record in this case.
A telegraph company is engaged in a public calling, exercises important rights and powers, and owes corresponding duties to the public. By the established doctrine of this State, a carrier can not stipulate for exemption from liability for negligence, whether gross or willful, or otherwise. — East Tenn., Va. & Ga. R. R. Co. v. Johnson, 75 Ala. 596. The same rule has also been applied to telegraph companies. Sweatland v. Ill. & Miss. Tel. Co., 27 Iowa, 433. On well settled principles, founded on public policy, a telegraph company can not contract to be relieved from the exercise of due care and diligence in the transmission of telegrams to a point of destination over its own lines; and when it undertakes to secure the transmission of a message to a point of destination beyond the terminus thereof over connecting lines, the same rule applies as to transmission to the terminus of its own lines. A construction that the terms and conditions secure immunity from the consequences of the fault or neglect of the company’s officers or agents, would condemn the contract as contrary to law, and deny it any force or effect.
But, was the construction of the contract properly submitted to the jury ? When the legal effect and operation of a written instrument depends upon evidence of collateral facts “in pais," the inference of fact may, and should be submitted to the jury; but when the evidence consists wholly of writings, and the legal effect and operation solely depend upon the meaning-and construction of the words employed, it is the province and duty of the court to construe written instruments and declare their legal effect. — Boykin v. Bank of Mobile, 72 Ala. 262. The evidence on which the construction of the contract was submitted to the jury, consists wholly of written instruments; being an offer of undisclosed terms to purchase, its rejection, accompanied by a counter proposition to sell, which, without more, is followed by the cablegram, and the acceptance of the offer thereby made. There is nothing indeterminate or obscure; nothing for construction, or requiring the aid of extrinsic evidence. The cablegram varies the terms of plaintiff’s proposition, not only as to the number of bales, but also as to the price at which the November contracts should be purchased; the proposition being, that the basis should be the prices on the day the trade is made, and the cablegram being the closing quotations of the previous day. On no principle of legal construction can an offer to purchase a specified number of bales on specified terms be regarded an acceptance of a proposition to sell a larger and indefinite number on different terms. Had Roth’s offer been accepted, he would not have been bound to take any number other than that stated in the cablegram. The court should have construed the writings, and instructed the jury that had the contract been completed, it would have been for the sale of one thousand bales and no more.
Other questions presented become, under the views we have taken of the case, unimportant and immaterial, and their consideration is unnecessary.
Eeversed and remanded.
— I do not concur in the rule announced in the case of Daughtery v. Amer. U. Tel. Co.,
In addition to these considerations, the rule, allowing only nominal damages in cases of this kind, is sustained, as I have said, by the overwhelming weight of authority in this country, as well as in England. 1 am opposed to any departure from this salutary and settled rule, based, as I believe it to be, upon the broad foundations of justice, fair dealing, and sound public policy. I need but refer to the following authorities in support of these views-Baldwin v. U. S. Telegraph Co., 45 N. Y. 744; s. c., 6 Amer. Rep. 165; Allen’s Tel. Cases, 613; Landsberger v. Magnetic Tel. Co., 32 Barb. 536; Daniel v. W. Un. Tel. Co., 61 Tex. 452; s. c., 48 Amer. Rep. 305; U. S. Tel. Co. v. Gildersleve, 96 Amer. Dec. 519; First Nat. Bank v. Tel. Co., 30 Ohio St. 555; s. c., 27 Amer. Rep. 486; Stevenson v. Montreal Tel. Co., 16 U. C. (Q. B.) 530; Gray on Communication by Telegraph (1885), §§87-97; W. Un. Tel. Co. v. Martin, 9 Brad. (Ill. App.) 587; 3 Suth. on Damages, 298-300; Wood’s Mayne on Damages, §§ 35, et seq.; Sanders v. Stuart, 45 L. J. C. P. 682; s. c., Moak’s Eng. Rep. 286; Beaupre v. Pac. & A. Tel. Co., 21 Minn. 155; Mackey v. W. Un. Tel. Co., 16 Nev. 222; Candee v. W. Un. Tel. Co., 34 Wis. 471; s. c., 17 Amer. Rep. 452; Camp v. W. Un. Tel. Co., 71 Amer. Dec, 472, note; 1 Sedg
The only other courts of last resort that have taken an opposite view touching this subject of liability for-cipher dispatches, so far as I have been able to discover, are those of Virginia and Florida, and these decisions are by divided courts. — W. Un. Tel. Co. v. Reynolds, 77 Va. 173; s. c., 46 Amer. Rep. 716; W. Un. Tel. Co. v. Hyer, Sup. Ct. Fla., 1886, 1 So. Rep. 129.