Western Union Telegraph Co. v. Whitson , 145 Ala. 426 ( 1906 )

TYSON, J.

Only one ground of the demurrer assigned to the several counts of the complaint is insisted on here. It is the one assailing the sufficiency of the averment of the counts for the failure to allege that the addressee of the message lived, did business, and ivas to be found Avithin the free delivery limits of the defendant’s office to which it Avas transmitted for delivery. If such was a term of the contract between the- sender, as the plaintiff’s agent, and the company, that Avas a matter of defense. It is in the ntaure of an exception to the general obligation of duty imposed upon the defendant company to transmit and deliver messages received by it to the addressee, and if the company has established a free delivery limit, and a regulation Aidtli respect to delivery of messages to persons outside of it, this is defensive matter. And doubtless, where this defense is set up and it is shown that the sender, acting for the sendee, contracted with reference to an established free delivery limit, the burden Avould be upon the sendee where he is the plaintiff, as it is upon the sender Avhen he is complaining, or proving that the residence or business place of the addressee is within the established limits. This is in substance Avhat Avas held on this point in Western Union Tel. Co. v. Henderson, 89 Ala. 510, 518, 7 South. 419, 18 Am. St. Rep. 148, Avherc the defense Avas invoked by special pleas. See also, Western Union Tel. Co. v. Mer-rill, 144 Ala. 618, 39 South. 121.

The testimony offered by defendant, and excluded on motion, had no tendency Avlxatever to shoAV that plaintiff’s son Avas his agent to receiAre the telegram for him. There Avas, therefore, no error in this ruling. It is undoubtedly the law that it Avas the duty of the defendant to deliver the message to the plaintiff if he could be found by the exercise of reasonable diligence. If unable to make a personal delivery, it Avas its duty to deliver the message to his authorized agent. Whether the defendant Avould have discharged its duty in this respect by delivering it to plaintiff’s wife, who Avas at home, instead of leaving it Avith his 11 year old son, is not presented.— CrosAvell on the LaAV Relating to Electricity, §§ 414, 415; Joyce on Electric LaAV, §§ 743, 744; 27 Am. & Eng. Ency. LaAV (2d Ed.) p. 1027. However this may be, Ave feel no hesitancy in holding that, as matter of law, it did not discharge its duty Avith respect to the delivery of the message by leaAdng it Avith plaintiff’s child under the circumstances shown in the testimony. In other words, we lipid that defendant’s messenger Avas guilty of negligence, as matter of Law, by leaving the message Avith the boy; that his act in doing so Avas not a delivery at all. The court on the undisputed testimony might Avell have given the affirmative charge for plaintiff upon the first and second counts of the complaint, had it been requested. This being true, and the third count having been charged out at the request of the defendant, it folloAvs that there Avas no error in refusing the several Avritten charges requested by defendant. — Bienville Water Sup-ply v. City of Mobile, 125 Ala. 178, 27 South. 781, and cases there cited.

Affirmed.

Simpson, Anderson, and Denson, JJ., concur.