
    Collins v. Western Union Telegraph Co.
    
      Damages for Failure to Deliver Telegram.
    
    (Decided May 9, 1906.
    41 So. Rep. 161.)
    1. Telegraphs; Action tor Damages; Evidence. — The message delivered to plaintiff by defendant is admissible in evidence, in an action for failure to promptly deliver telegram, although, plaintiff had not given notice to defendant to produce the original message, or produced or accounted for its absence.
    2. Same; Pleadings. — -It is necessary to present by plea defenses of terms or conditions on the telegraph form used-by plaintiff in sending the message, that would defeat his recovery. Otherwise they are not available to defendant.
    Appeal from Birmingham City Court.
    Hoard before Hon. Charles A. Senn.
    Action by appellant against appellee for failure to deliver telegram. The complaint and demurrers thereto are set out below. After the demurrers were overruled, issue was joined on the plea of the general issue.
    The complaint in this cause contained two counts, as follows: “(1) Plantiff claims of the defendant $1,500 as damages, for that heretofore, during the month of August, 1901, defendant was a common carrier of telegraphic messages, among other places, from Albertville, Ala., to Birmingham and to North Birmingham, Ala.; that at said time plaintiff was a practicing physician, residing in said North Birmingham, and having an office in said Birmingham, and plaintiff at said time had a patient, who wás also his sister-in-law, and had been wholly or partially raised by plaintiff as a member of his family, who was at or near said Albertville, and who was sick; that during said month, on the 16th day thereof, plaintiff, by his agent at said Albertville caused to be delivered to defendant at said Albertville a message as follows: ‘Patient not doing well. Come up in the morning’ — which message was addressed to plaintiff at said Birmingham. Defendant received said message at said Albertville for transmission by telegraph and deliverv to plaintiff, and it then and there became its duty to promptly transmit said message by. telegrapli, and to promptly deliver same to plaintiff; but, nowithstanding said duty, defendant negligently failed to promptly deliver said telegram to plaintiff, and as a proximate consequence thereof plaintiff was prevented from going to see said patient for a long time, to-wit, 48 hours, and was put to great and unnecessary expense in and about going to see said patient; and plaintiff, having treated and considered said patient as his adopted daughter, was made to suffer great mental pain and anxiety, and he further lost the cost of said telegram paid to defendant, and was caused to drive in the rain and mud and at night, and was subjected to great trouble, inconvenience, and annoyance in and about traveling as aforesaid. Count 2. [Same, as first count down to and including the words “having-'an office in said Birmingham.”] That during said time, on, to-wit, 16th day of August, 1901, and thereafter, plaintiff’s sister-in-law, who was also a patient of plaintiff and had been wholly or partially reared by plaintiff as a member of his family, Avas sick in or near Albertville, and on said day a message Avas delivered to defendant as a common carrier of telegraphic messages as aforesaid at said Albertville, addressed to plaintiff, to be transmitted. by telegraph and delivered to plaintiff. Defendant received said telegram at said Albertville on the 16th day of August, 1901, for the purpose of transmitting and delivering it to the plaintiff, and it then and there became and was the duty of defendant to promptly transmit and deliver to plaintiff the said telegram; but, notwithstanding said duty, defendant negligently failed to promptly deliver to plaintiff the said telegram, which telegram Avas in words and figures as folloAvs: ‘Patient not doing well. Come up in the morning.’ And as a proximate consequence of defendant’s said negligent failure to promptly deliver said telegram, plaintiff suffered the injuries and damages set out in the first count of the complaint.”
    The defendant demurred to the complaint, and to each count thereof, as MIoavs : “(1) It does not appear from said count who the sender of the telegram Avas. (2) It does not appear that the contract was made to send said message, or by Avhom it was made. (3) It does not appear that-the plaintiff had suffered in person or estate by reason of the alleged failure to deliver the telegram. (4) It does not appear where the message Avas sent, or by what address the plaintiff was addressed.” And to the second count, the folloAving grounds: “(1) The averment in respect to the damages suffered by the plaintiff is too vague, indefinite, and uncertain. (2) The averment in respect to damages suffered by the plaintiff is improper and insufficient, in that it refers to the damages alleged in the first count in a manner, that is too vague, indefintie, and uncertain.”
    The court overruled the demurrers .to the first count and sustained the demurrers to the second count. The plaintiff identified and offered in evidence the telegram which was handed him by defendant’s agents at Birmingham. The telegram was signed “T. A. Casey,” at Albertville, Ala., and addressed to Dr. M. H. Collins, Birmingham, Ala. It was marked, “Received at 19 1st Ave., Birmingham, Ala., Aug. 6, 7:10 p. m.,” and it was marked, “9 Raid.” The defendant objected to the introduction of the telegram in evidence because it was not the original telegram, and because the original telegram delivered to defendant at Albertville was the original telegram, and that no notice to produce the original had been given to defendant. It Avas shOAvn that the telegram Avas not deliArered until some time during the morning of the 7th of August. Plaintiff also offered the envelope in AAdiich the telegram was delivered, and the indorsement thereon, as follows: “Dr. M. H. Collins, 21st Ave., betAA'een 27th and 28th St., Charges Paid.” At the request of the defendant, the court instructed the jury to return a verdict for the defendant.
    Boatman, Harsh & Beddoaat, for appellants.
    The demurrers to the second count Avere improperly sustained. We are aAvare that this court has held that no action ex contractu could be maintained by the sendee of a telegram unless the sender was his agent.- — Forcl v. Postal Telegraph Go., 124 Ala. 400. The contrary doctrine has been held in the following cases: — Dryburyh’s case, -35 Pa. St. 298; Derutto v. Telegraph Go., 30 Hoav. Prac. 403. The American doctrine is stated in the follOAving cases. —66 Miss. 549, 6 So. Rep. 461; Gray Commun. Tel. § 104, Note 3; 21 Am. & Eng. Eney. PL and Pr. p. 509 and authorities cited. While the Alabama’ court has decided that a suit could not be maintained ex contractu by the sendee, it has newer decided that the sendee could not maintain an action ex delicto, and it is presumed that this court Avill not set itself at variance Avitli the American doctrine. — Young v. IF. U. Tel. Go., 9 L. R. A. 218; Mentzer r. IF. V. Tel. Go., 28 L. R. A. 72;d/c/AeA; v. IF. U. Tel. Go., 43 L. R. A. 218. The court erred in sustaining defendant’s objection to the introduction in evideuce of the telegram delivered to the sendee. The to1 ■ > graph company was the agent of the sendee, and the telegram delivered was the original so far as the sendee was concerned. — Whilden & Sons v. Merchants National Bank, 64 Ala. 1; Conyers v. Postal Telegraph Co., 92 Ga. 619; W. O. T. Co. v. J’atman, 73 Ga. 285; W. TJ. T. Co. v. Thompson, 44 S. W. 402; Reliance L. Co. v. W. TJ. 7". Co., 58 Tex. 394; W. TJ. T. Co. v. Bennett, 21 S. W. 699; 2 Thomp. Neg. p. 1059; Ashford v. Schoop, 81 Mo. App. 539.
    Walker, Tillman, Campbell & Walker, for appellee.
    The demurrer to the second count was properly sustained.' — Blount’s case, 126 Ala. 105; Adair’s case, 115 Ala. 144; Ford’s case, 117 Ala. 674. The court propertly sustained the objection to the copy of the telegram delivered to the sendee. — Dougherty’s case, 89 Ala. 194; Whilden’s case, 64 Ala. 70. The general charge for the defendant was properly given. — Ayer’s case, 131 Ala. 391; Ford’s case, supra; Adair’s case, supra.
    
   WEAKLEY, C. J.

This action was brought, not for a falure to transmit or deliver a telegraphic message, but the gravamen of the complaint is that the message which the plaintiff actually received Avas not promptly delivered. The plaintiff did not produce or account for the absence of the AAadtten message lodged AAÚth the defendant’s agent at Albertville, nor give notice to the defendant to produce that message, and the city court, being of opinion that the Avritten message prepared by the sender, plaintiff’s agent, and delivered to the defendant at AlbertAdlle, Avas to be deemed the original message, in the situation of this case, refused to alloAV the plaintiff to introduce the message, or the envelope inclosing the same, which the defendant actually delivered to him at Birmingham. In this ruling there Avas error. There Avas no claim that any mistake had intervened in the transmission of the message, nor that the message delivered Avas not the very message received by the defendant, from the sender. Under-these circumstances the presumption is that the message delivered is a correct reproduction of that received, and it ivas admissible in support of the complaint. — Western Union Tel. Co. v. Fatman, 73 Ga. 285, 54 Am. Rep. 877 ; Couyers v. Postal Tel. Co., 92 Ga. 619, 19 S. E. 253, 44 Am. St. Rep. 100 ; 2 Thompson on Neg. § 2521 ; 25 Am. & Eng. Ency. Law (1st Ed) p. 880.

We do not find that the cases relied on by appellee to support the ruling of the city court conflict with what we now hold. — American Union Tel. Co. v. Daugherty, 89 Ala. 191, 7 South. 660 (s. c. sub nom. Daugherty v. Telegraph Co., 75 Ala. 168, 51 Am. Rep. 435), was a suit for the non-delivery of a message, and there the whole effort was to introduce secondary evidence of the message lodged with the defendant at the point whence it was to be transmitted. The exact and only point there decided, so far as it is necessary for us now to inquire, was that incompetent evidence had been admitted to prove the destruction of the message delivered to the company for transmission. In Whilden v. National Bank, 64 Ala. 1, 38 Am. Rep. 1, it was said: “There is some difficulty in determining whether the message delivered to a telegraphic office, or that which is delivered to the person to whom it may be addressed at the point of destination, is to be regarded as the original. Perhaps, under some circumstances, the one or the other may be considered the original. It is not now necessary to enter on that inquiry.’’ And the court proceeds to .hold that the message received, by the sendee was admissible upon two distinct grounds: First, because the message as written by the sender was without the jurisdiction of the court; and, second, because the appellants had voluntarily adjnitted to the witness the genuineness of the dispatch offered in evidence. So far from there being any holding that the message delivered to the sendee was secondary, not the original, there is obviously in the opinion a studied and cautious purpose to ¡avoid sxich holding. Tin1 case, however, supports rather than conflicts with the view that we. have taken. The delivery of the message to the plaintiff was the equivalent of an assertion by the defendant that it was the message it had received for transmission, and was equivalent of an admission of its genuineness and correctness. If there were any valid terms or conditions upon the form employed by the sender which the message as prepared at Albert-ville would have disclosed, and which would have defeated the action, they could and should have been brought forward by plea. No such plea was interposed.

There was no error in sustaining the demurrer to the second count of the complaint. The count failed to connect the plaintiff with the sending of the message, or to show any breach of duty to him of which he could complain.

Reversed and remanded.

Tyson, Simpson, and Anderson, JJ., concur.  