Postal Tel.-Cable Co. v. Shepherd , 14 Ala. App. 371 ( 1916 )

THOMAS, J.

The plaintiff below, who is appellee here, withdrew all counts of the complaint except count four, upon which the trial was had. The overruling of a demurrer to this count is assigned and urged as error by the defendant. We are of opinion that the count (which the reporter will set out in full) is defective for reasons as pointed out in the demurrer. It fails to show any contract or duty on the part of the defendant to transmit and deliver to plaintiff at Los Angeles, Cal., the telegraphic message described in the count, and which the count alleged, as responsible for plaintiff’s damages, defendant negligently failed to transmit and deliver to plaintiff at Los Angeles, Cal. It is true that count 2 of the complaint, which was withdrawn, as before said, averred that defendant (quoting from the count) “agreed to transmit and deliver to the plaintiff at 745 South Union avenue in the said city of Los Angeles, California [the message in question], for which it [defendant] received a reward”; and it is further true that these allegations were sufficient to show in that count a contract and consequent duty on defendant’s part to transmit and deliver said message to plaintiff at said Los Angeles. And it is further true that count 4 — the count under consideration — adopted as a part of itself a portion of said count 2; but it did not adopt the portion we have quoted (the only portion which showed a contract on defendant’s part to transmit the message to plaintiff at Los Angeles, Cal.), and it failed in allegations of its own to supply the deficiency. We have discussed the question of the defectiveness of a count like this fully in the case of Western Union Tel. Co. v. Hawkins, Infra, 70 South. 12, where the authorities are cited and where our reasons for holding that the court here erred in not sustaining the demurrer are fully amplified.

The other questions raised by this appeal that are insisted upon in brief need not be discussed, since they were, in effect, recently (since this appeal) determined by our Supreme Court in.the case of Western Union Telegraph Co. v. E. W. Favish, 196 Ala., 71 South. 183, which is sufficient to indicate our rulings on those questions.

The judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.