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214; Western U. Teleg. Co. v. Mahone, 121; Western U. Teleg. Co. v. Hicks. 120 Va. 422, 91 S. E. 157; Western U. 197 Ala. 81, 72 So. 356; Western U. Teleg. Co. v. Bolling, 120 Va. 413, 91 Teleg. Co. v. Whitson, 145 Ala. 426, S. E. 154, Ann. Cas. 1918C, 1036; 41 So. 405; Swan v. Western U. Teleg. Western U. Teleg. Co. v. Bowles, 124 Co. 67 L.R.A. 153, and note, 63 C. C. A. Va. 730, 98 S. E. 645; Western U. 550, 129 Fed. 318; Western U. Teleg. Teleg. Co. v. Lee, 174 Ky. 210, 192 S. Co. v. Snell, 3 Ala. App. 263, 56 So. W. 70, Ann. Cas. 1918C, 1026, 15 N. C. 854. C. A. 1; Taylor v. Western U. Teleg. Whether or not a party could and Co. 199 Mo. App. 624, 204 S. W. 818; would attend the funeral, etc., is a Western U. Teleg. Co. v. Kaufman, 62 question for the jury under all the Okla. 160, 162 Pac. 708; Bateman v. evidence in the case, and the jury may Western U. Teleg. Co. L.R.A.1918A, infer such fact from the circum803, and note, 174 N. C. 97, 93 S. E. stances. 467; Berg v. Western U. Teleg. Co. Western U. Teleg. Co. v. Smith, 189 110 S. C. 169, 96 S. E. 248.

Ala. 534, 66 So. 578; Western U. Teleg. Messrs. Foster, Verner, & Rice and Co. v. Snell, 3 Ala. App. 263, 56 So. Brown & Ward, for appellee:

854. There is a rebuttable presumption Upon the receipt by a telegraph that the agent or employee has per- company of a message for transmisformed his duty and informed his sion and delivery, and acceptance of principal of every material fact with- the fee therefor, it becomes its legal in his knowledge, no matter when or duty, in case from any cause it is imhow acquired, which bears upon the possible to transmit the message, or subject-matter involved and which should delay become necessary, to may affect the principal's interest notify the sender of such fact, though with respect thereto.

the sender has a right to rely on the Blount County Bank v. Harris, 200 assumption that the message will be Ala. 669, 77 So. 43; Hall & B. Wood- duly transmitted and delivered, and working Mach. Co. v. Haley Furniture he is under no duty to inquire of the & Mfg. Co. L.R.A.1918B, 924, and note, defendant, or otherwise, whether his 174 Ala. 190, 56 So. 730; Bluthenthal message was correctly transmitted & Bickart v. Columbia, 175 Ala. 398, and received. 57 So. 814; Green v. Harsh, 204 Ala. Swan v. Western U. Teleg. Co. 67 520, 86 So. 392.

L.R.A. 153, and note, 63 C. C. A. 550, Overruling an objection to a ques- 129 Fed. 318; Western U. Teleg. Co. tion which was not answered is not

v. Holland, 11 Ala. App. 510, 66 So. reversible error.

926; Western U. Teleg. Co. v. Hill, 163 Alabama G. S. R. Co. v. Frazier, 93

Ala. 18, 23 L.R.A. (N.S.) 648, 50 So. Ala. 45, 30 Am. St. Rep. 28, 9 So. 303,

248, 19 Ann. Cas. 1058, 21 Am. Neg. 8 Am. Neg. Cas. 17.

There is a prima facie obligation Rep. 1; Fleischner v. Pacific Postal resting on a telegraph company to

Teleg. Cable Co. 55 Fed. 738; Westmake to the addressee actual personal

ern U. Teleg. Co. v. Bierhaus, 12 Ind. delivery of a telegram without delay, App. 17, 39 N. E. 881; Western U. the failure to transmit or deliver rais- Teleg. Co. v. Hicks, 197 Ala. 81, 72 ing the presumption of negligence So. 356; Lyles y. Western U. Teleg. and casting on the defendant the bur- Co. 77 S. C. 174, 12 L.R.A.(N.S.) 534, den of proof of defense of the use by 57 S. E. 725; Western U. Teleg. Co. v. it of due care and diligence in an ef

Snell, 3 Ala. App. 263, 56 So. 854. fort to perform its duty, and the determination of this issue is for the Somerville, J., delivered the opinjury.

ion of the court: Western U. Teleg. Co. v. Houghton,

When a telegraph company ac15 L.R.A. 129, and note, 82 Tex. 561,

cepts a message for transmission 27 Am. St. Rep. 918, 17 S. W. 846;

and delivery to the sendee, it imWestern U. Teleg. Co. v. Hill, 163

pliedly undertakes Ala. 18, 23 L.R.A. (N.S.) 648, 50 So.

to transmit the Telegraph248, 19 Ann. Cas. 1058, 21 Am. Neg. Rep. 1; Western U. Teleg. Co. v. Hol- message promptly, corporation

accepting land, 11 Ala. App. 510, 66 So. 926; and to deliver it Western U. Teleg. Co. v. Merrill, 144 promptly to the Ala. 618, 113 Am. St. Rep. 66, 39 So. sendee after its transmission to the

message.

(- Ala.

89 So. 299.) terminal office. The word "prompt- without delay, and if from any

ly” in this connec- cause it is impossible to transmit Definition - tion means expedi- the message, or if delay will be “promptly'. transmitting tiously, and without

necessary, the company should intelegram. undue delay, i. e., form the sender.

Delivery as quickly as is should be made as soon after transpracticable under the circumstances. mission as practicable. The duty of

Our cases have expressed this early delivery is as necessary as the duty in somewhat variant phrase- prompt transmission. What conology. In Daughtery v. American stitutes due diligence as to prompt U. Teleg. Co. 75 Ala. 168, 178, 51 delivery is usually a question for Am. Rep. 435, it was said that the jury, and usually depends upon "messages must be sent in the order the facts of each particular case." of their handing in, without favor In an action on the contract neglior partiality, without delay, and gence need not be charged. Westwithout reference to the value of ern U. Teleg. Co. v. Fuel, 165 Ala. the interests to be affected."

391, 51 So. 571. The absence of In Western U. Teleg. Co. v. Hen- negligence in respect to the failure derson, 89 Ala. 510, 517, 18 Am. St. to promptly and duly transmit and Rep. 148, 7 So. 422, it was said that deliver is, however, a legal excuse the company's duty is "to forward for such failure, the message accurately, and with and, being defen- burden of proof proper diligence," and "to deliver it sive matter,

the -absence of

negligence, with all convenient speed."

burden of its proof In Western U. Teleg. Co. v. rests upon the defendant. Western Chamblee, 122 Ala. 428, 434, 82 Am. U. Teleg. Co. v. Chamblee, 122 Ala. St. Rep. 89, 25 So. 234, the general 428, 434, 82 Am. St. Rep. 89, 25 So. rule is stated "that a telegraph com- 232; Western U. Teleg. Co. v. Merpany, in accepting a message for

rill, supra. transmission, is under obligation, Count 1 sets up an undertaking by its contract with the sender of “to transmit and deliver the mesthe message, to transmit it correct- sage,” and it also alleges facts from ly and without delay."

which the law imIn Western U. Teleg. Co. v. Mer- plies an obligation complaint for rill, 144 Ala. 618, 622, 113 Am. St. to transmit and de- negligence in Rep. 66, 39 So. 123, a plea was held liver promptly, telegramdemurrable because it did not aver

sufficiency.

that is, expeditious"that the company transmitted the ly and without undue delay. The message, or attempted to transmit breach charged is in accordance it, promptly as it contracted to do, with the duty assumed, and we hold and which the law required it to that the count is not subject to any do."

of the grounds of demurrer. In Western U. Teleg. Co. v. Saun- Aided by the arguments of counders, 164 Ala. 234, 239, 137 Am. St. sel, we have examined count 2 with Rep. 35, 51 So. 178, it was said: critical care. Our conclusion is that "If the contract was to deliver it charges severally a breach of promptly, or if the law imposed the each of two distinct obligations of duty of delivering promptly, a deliv

the contract sued on, and seeks a ery after undue delay is not a com

recovery for both. But in actions pliance."

on contracts, duplicity of breaches In Western U. Teleg. Co. v. Hill,

as to distinct ob163 Ala. 18, 27, 23 L.R.A. (N.S.) ligations is permis- breaches of

-duplicity in 648, 50 So. 251, 19 Ann. Cas. 1058, sible, and does not 21 Am. Neg. Rep. 1, the duty is thus make the complaint demurrable. laid down: “Upon the receipt of Nave v. Berry, 22 Ala. 382; Watts v. the message it is the duty of the

is the duty of the Sheppard, 2 Ala. 425; 13 C. J. 733, , telegraph company to transmit it § 868. We see no reason why this

transmitting

contract.

of claim,

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rule should not apply to implied to him in every case, and the injury stipulations and obligations im- may be equally preventable or mitiposed by law, as well as to those gable; and the duty of informing which are expressed in the contract. him of the failure imposes no great

The first breach charged is that er burden upon the company in the defendant failed to transmit and one case than in the other. deliver the message promptly, as it In the case of inability to deliver undertook to do. As to this, the because the sendee could not be count is clearly sufficient, and not found, it has been held by several subject to demurrer, for the rea- courts that it is the duty of the sons stated in our discussion of company, in all cases practicable. count 1, above.

promptly to inform the sender of The second breach charged is that the message that it cannot be dedefendant negligently and careless- livered. Hendricks v. Western U. ly failed to inform plaintiff of its in- Teleg. Co. 126 N. C. 304, 78 Am. ability to so transmit and deliver- St. Rep. 658, 35 S. E. 543; note to a separate and distinct obligation. Swan v. Western U. Teleg. Co. 67 Assuming for the moment that this L.R.A. 153, 155. But the question breach is not founded upon any whether or not it is negligence to defective state

duty shown, or that fail to attempt to notify the sender ment of portion it is defectively that the sendee stated as a matter cannot be found,

Trial-question

for juryof good pleading, the count as a that the message negligence of whole was not thereby made sub- cannot be delivered, company. ject to demurrer. In such a case, is a question of fact the proper practice is to address the to be determined by the jury. demurrer only to the defective as- Western U. Teleg. Co. v. Davis, signment; otherwise the demurrer Tex. Civ. App. -51 S. W. 258; id., cannot be sustained.

Watts v. 24 Tex. Civ. App. 429, 59 S. W. 46. Sheppard, 2 Ala. 425; 13 C. J. 733, We approve this rule of duty as § 868.

sound in policy and just in operaBut, looking to the merits of tion, and we think its breach is the question, we are of the opinion properly charged in count 3 of the that, in principle, it has been here- complaint. tofore settled by our decisions ad- The case of Western U. Teleg. Co. versely to defendant's contention. v. Henderson, 89 Ala. 510, 18 Am. Western U. Teleg. Co. v. Hill, 163 St. Rep. 148, 7 So. 419, discussed Ala. 18, 27, 28, 23 L.R.A.(N.S.) 648, and defined the duty of the com50 So. 248, 19 Ann. Cas. 1058, 21 pany as to making delivery, where Am. Neg. Rep. 1; Western U. Teleg. the sendee was without the free Co. v. Hicks, 197 Ala. 81, 72 So. delivery district, and no provision 356. It is true that those cases re- was made by the sender for delivery lated to defendant's inability to outside, in accordance with the comtransmit the message, due to serv- pany's published rules. There was ice conditions. But we are unable

no question there as to the existence to discover any practical or substan- or performance of the consequential reasons for a difference in the tial duty here under consideration. obligation of the company in case The recoverability of damages of inability to transmit, and of in- for the mental suffering of the sendability to deliver to the sendee after er could not be raised by demurrer transmission. The sender's igno- to the complaint, rance of the fact of nondelivery, to whether the liabili. Pleadingwhatever cause the failure may be ty of defendant was raising question due and at whatever stage it may governed by state damages. become apparent, whether before or Federal law. or after transmission to the termi- Daughtery V. American U. Teleg. nal point, may be equally injurious Co. 75 Ala. 168, 51 Am. Rep. 435;

demurrer

Commerce

state.

(- Ala. —, 89 So. 299.) Western U. Teleg. Co. v. Garthright, mission of this message was an act 151 Ala. 413, 44 So. 212; Western of interstate commerce, and was U. Teleg. Co. v. Jackson, 163 Ala. governed exclusive9,50 So. 316.

ly by the provisions interstateNor could the question be raised of the Federal Com- domestic tele

gram passing by a plea setting up that the trans- merce Act, as through other mission and delivery of the message amended by the Act were, by reason of its passage,

of Congress of June 18, 1910 (Comp. according to established routine, Stat. § 8563, 4 Fed. Stat. Anno. 2d

through the state ed. p. 337); and damages for mental -plea-failure to answer whole of Georgia, an act anguish are accordingly not recovclaim.

of interstate com- erable. Western U. Teleg. Co. v. merce, and governed by the Federal Beasley, 205 Ala. 115, 87 So. 858 Commerce Act. Such a plea would (wherein this court followed the renot have answered the complaints, cent and controlling decision of the and would not have been in bar of a Federal Supreme Court in Western recovery for loss of the charge paid Teleg. Co. v. Speight, 254 U. S. the company for the service under- 17, 65 L. ed. 101, 41 Sup. Ct. Rep. taken. Alexander v. Woodmen of 11, decided October 25, 1920. World, 161 Ala. 561, 49 So. 883.

The rulings of the trial court as Defendant's evidence showed to such damages were not in accord without dispute that, at the time

with the rule announced, and the this message from Tuscaloosa to

judgment must therefore be reWylam was accepted by it for trans

versed and the cause remanded for mission, Atlanta was the established relay point for all messages going

another trial. We deem it unnecesout of Tuscaloosa to such points as

sary to discuss other questions Ensley and Wylam, and that route

argued by counsel. of transmission, viz., Atlanta, was uniformly adopted and used at that Anderson, Ch. J., and McClellan time, and that Atlanta was the dis- and Thomas, JJ., concur. tributing point for the entire Southeast.

Petition for rehearing denied May Under such conditions the trans

19, 1921.

ANNOTATION.

Duty of telegraph company to notify sender of message in case of inability

to transmit or deliver promptly.

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as he had anticipated, and may act accordingly. Failure to give the notice will render the company liable for any damage resulting therefrom. See the cases cited throughout this note.

Thus, in the case of Western U. Teleg. Co. v. Erwin (1912) Tex. . Civ. App. —, 147 S. W. 607, the court stated the rule as follows: "Independent of any special contract, the acceptance of a message for transmission fixes upon a telegraph company the obligation and duty to transmit and make prompt delivery thereof. The public may rely upon this obligation and duty, and assume that an important message will be delivered at destination within a time reasonably It has been held that the failure to necessary for that purpose. If prompt notify the sender of a delay in the delivery be impossible because the transmission or delivery of a message line is not working or is crowded with is, in itself, evidence of negligence. other business, or because the sendee Swan v. Western U. Teleg. Co. (1904) cannot be found, or for some other 67 L.R.A. 153, 63 C. C. A. 550, 129 Fed. reason a prompt delivery cannot be 318, certiorari denied in (1904) 195 made, it is the duty of a telegraph U.S. 628, 49 L. ed. 349, 25 Sup. Ct. Rep. company to notify the sender of the 787; Cogdell v. Western U. Teleg. Co. impending delay."

(1904) 135 N. C. 431, 47 S. E. 490; So, in Western U. Teleg. Co. v. Hill Carter v. Western U. Teleg. Co. (1906) (1909) 163 Ala. 18, 23 L.R.A.(N.S.) 141 N. C. 374, 54 S. E. 274; Woods v. 648, 50 So. 248, 19 Ann. Cas. 1058, 21 Western U. Teleg. Co. (1908) 148 N. C. Am. Neg. Rep. 1, the court said: 1, 128 Am. St. Rep. 581, 61 S. E. 653; “Upon the receipt of the message it is Western U. Teleg. Co. v. Hargrove the duty of the telegraph company to (1896) 14 Tex. Civ. App. 79, 36 S. W. transmit it without delay, and if from 1077. any cause it is impossible to transmit In Cogdell v. Western U. Teleg. Co. the message, or if delay will be neces- (1904) 135 N. C. 431, 47 S. E. 490, an sary, the company should inform the action by the sendee of a message for sender; certainly so, if the message damages suffered by her by the failure shows on its face the importance of of the defendant company to deliver hasty transmission and delivery." a telegram informing her of her Some cases hold that the sender

father's death, the court said: “If for must be "promptly" notified of delay

any reason it (the company] cannot in the transmission or delivery of a deliver the message, it becomes its message. Swan v. Western U. Teleg. duty to so inform the sender, stating Co. (1904) 67 L.R.A. 153, 63 C. C. A.

the reason therefor, so that the sender 550, 129 Fed. 318, certiorari denied in

may have the opportunity of supplying (1904) 195 U. S. 628, 49 L. ed. 349,

the deficiency, whether it be in the 25 Sup. Ct. Rep. 787; Hendricks V. address or additional cost of delivery. Western U. Teleg. Co. (1900) 126 N. C.

The failure to notify the sender of 304, 78 Am. St. Rep. 658, 35 S. E. 543;

such nondelivery is of itself evidence Green v. Western U. Teleg. Co. (1904) of negligence." 136 N. C. 506, 49 S. E. 171, 1 Ann. Cas.

It has, however, been held that the 358; Carter v. Western U. Teleg. Co. duty of a telegraph company to notify (1906) 141 N. C. 374, 54 S. E. 274;

the sender of its inability to send a Evans v. Western U. Teleg. Co. (1900)

message is not an absolute one; that - Tex. Civ. App. —, 56 S. W. 609. at most it can be only a question And damages have been allowed for

whether, under all the circumstances, mental anguish resulting from delay, a reasonably prudent person would in giving the notification.

Green v.

pursue such a course; and that the Western U. Teleg. Co. (1904) 136 N. C. necessity and sufficiency of notice are 506, 49 S. E. 171, 1 Ann. Cas. 358,

questions for the jury. Faubion v. supra.

Western U. Teleg. Co. (1904) 36 Tex. In the case of Swan v. Western U.

Civ. App. 98, 81 S. W. 56; Western U. Teleg. Co. (Fed.) supra, an action by

Teleg. Co. v. Sorsby (1902) 29 Tex. the sendee of a message for damages

Civ. App. 345, 69 S. W. 122; Western sustained by the failure of the defend

U. Teleg. Co. v. Davis (1899) Tex. ant company to give notice to the

Civ. App. 51 S. W. 258. sender of the delay in sending a

In Western U. Teleg. Co. v. Sorsby message which it had agreed to trans

(1902) 29 Tex. Civ. App. 345, 69 S. W. mit at once, by which failure the sendee sustained a loss, it was held

122, supra, the court said: “It seems to that it was the duty of the defendant

be fairly well settled that if a telecompany to notify the sender promptly graph company discovers, after acceptof its inability to transmit the message ing a message for transmission, that without delay.

by reason of the disturbed condition of

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