Western Union Telegraph Co. v. Mathis , 215 Ala. 282 ( 1926 )

Each of the counts of the complainant charges an undertaking by the defendant to transmit and deliver for a reward the message in question, and are not bad for failing to specifically aver an undertaking to "promptly" transmit and deliver. When a telegraph company accepts a message for transmission and delivery, it impliedly undertakes to do so promptly and without delay; otherwise there would be no need or advantage for people to resort to this method of communication. Moreover, the message carried upon its face the necessity for a prompt transmission and delivery. Western Union Telegraph Co. v. Barbour, 206 Ala. 129, 89 So. 299, 17 A.L.R. 103. None of the cases cited by appellant's counsel on this point are contrary to the present holding.

We are of the opinion that the offer of the position and request for an answer were sufficient to impress upon the agents of the defendant the need for a prompt delivery and the probable loss to the plaintiff of the position in the absence of a prompt acceptance whether the offer was or was not unconditional, and the proof shows that the plaintiff would have gotten the position had there been a prompt delivery of the message and an acceptance by her.

The trial court did not err in overruling the defendant's demurrer to plaintiff's replications 1 and 2 to the fourth plea. They set up an avoidance of the rule as set out in the plea or a waiver of same by the agents of the defendant because of a custom or understanding with the household of which plaintiff was an occupant to deliver messages over the telephone, the connection then existing, and being in good working order. These replications are unlike the class condemned in the case of Minge v. Clark, 190 Ala. 388,67 So. 510. These replications do not set up a custom unknown to the parties, so as to fall under the influence of Middleton v. Western Union Co., 197 Ala. 243, 72 So. 548, but set forth an agreement or understanding with the defendant's agents to deliver messages over the telephone.

The trial court did not commit reversible error in declining to suppress the deposition of the witness Rogers for a failure to answer cross-interrogatory 10, or because the answer was not responsive. True, the answer was not as pertinent and specifically responsive as it might have been, but we think the defendant got the benefit of a negative answer to said cross-interrogatory, as the effect of the answer plainly shows that plaintiff had not been elected by the board of trustees prior to the date of sending her the telegram by Grier, the superintendent. Indeed, there was no contention that she had been selected, as another had been and resigned, and the evidence tends to show that Grier was authorized to supply the vacancy.

There was no error in admitting the message as received by the plaintiff in evidence. It had been repeated to her over the telephone, and was subsequently delivered by defendant's agent to her father.

The trial court did not err in declining to let the defendant introduce what purported to be the original message. True, it was produced upon the demand or request of the plaintiff, but she did not introduce same, and the defendant did not have the right to do so without some proof of the genuineness of same; that is, that it was the message signed and delivered to it by Grier, the sender.

We do not think that the trial court erred in permitting the plaintiff to give the conversation with Grier over the long distance telephone as soon as she got the message, as it was but an effort on her part to still get the position and minimize if possible the damages caused by the delay. True, this conversation was in a sense hearsay, but it was with the sender of the message, the superintendent of the school, and the one whom the jury could infer had authority to employ the plaintiff. Western Union Co. v. Bowman, 141 Ala. 175,37 So. 493.

The evidence was sufficient to make out a case for the jury as to all of the counts, and the trial court did not err in refusing the general charge requested by the defendant.

So much of the oral charge as excepted to by the defendant and set out in assignments of error 40 and 41 was not objectionable as charging upon the effect of the evidence. It was merely a statement of undisputed facts, and the criticism that it stated an agreement with the defendant, instead of its agents or servants, is hypercritical.

While we have not discussed all of the objections and contentions of the appellant, they have not been overlooked, and we find that the rulings of the trial court are free from reversible error.

The judgment of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.