Woodall v. Western Union Telegraph Co.

*267 GARDNER, J. Action by appellant against appellee to recover damages for the alleged negligent failure to promptly transmit and deliver a telegram in reference to a cotton transaction. The cause was submitted to the jury, resulting in a verdict for the defendant, from which the plaintiff has prosecuted this appeal. The plaintiff was a dealer in cotton in the town of Guntersville, and the telegram was sent to one Stubbs at Scottsboro, Ala. There was no direct line of telegraphic communication between Guntersville and Scottsboro, and the telegraph company sent this message in accordance with its custom through Birmingham, Atlanta, and Chattanooga as relay stations, and thus to Scottsboro. Pleas 10, 11, and 12 set up certain defenses arising from stipulations found on the back of the telegram, constituting a part of the contract. These pleas disclose that the transaction was of interstate character. The first assignment of error had reference to the action of the court in overruling plaintiff’s demurrer to these pleas. As we gather from the brief of counsel for appellant it appears to be conceded that if the message was an interstate one the ruling of the court below was in conformity with the former decision of this court. West. U. Tel. Co. v. Beasley, 205 Ala. 115, 87 South. 858; West. U. Tel. Co. v. Hawkins, 198 Ala. 682, 73 South. 973; West. U. Tel. Co. v. Barbour, 206 Ala. 129, 89 South. 299, 17 A. L. R. 103. However, upon an examination of the record, we find that it contains no demurrers addressee! to pleas 10, 11, and 12, and therefore the court is not in position to consider the assignment of error based upon this ruling. Some of the more important assignments of error, including exception to a portion of the oral charge of the court, and the refusal of charges requested by the plaintiff, rest upon the theory that the plaintiff was in no manner bound by the stipulations of the written message for the reason he did not sign the same, nor was it signed by any one authorized by him in the premises. The plaintiff had been dealing in cotton in Guntersville, Ala., for a number of years, and had sent many telegrams over the defendant’s line. A number of these messages were telegrams sent from his office to the office of the defendant' — these offices being situated about 75 yards distant one from the other. He had telegraph blanks in his office and had written messages in his office and sent them to the defendant’s office, and had also sent many messages from the office of the defendant company. Plaintiff testified that the defendant’s agent had possibly left telegraph message forms like the one in question in his office. The agent of the defendant testified that the plaintiff, was in the telegraph office each day during the cotton season, unless he happened to be out of town, that he would sometimes, to use the language of the witness, “be in my office as much as a dozen times a day,” and that “he never made any objections to sending telegrams on the blanks furnished.” The form in question was the regular form kept in the office for regular day telegrams, and when the plaintiff came to the office he used this form of telegram, and when he (the agent) took the plaintiff’s messages over the telephone they were written on the regular day telegram blanks. On the occasion in question the plaintiff, at about 5:35 in the afternoon of December 2, 1920, called the defendant’s office over the telephone and asked for Mr. Long, the agent, stating he wanted to send a telegram. One Jordan, who happened to be a visitor in the office at the time, told the plaintiff that Long was busy and had instructed him (Jordan) to take down the message. Plaintiff then dictated the message to Jordan, who wrote it down as given over the telephone, and when the message was completed plaintiff requested that it be repeated back to him, which was done — the plaintiff stating that it was correct. The message was written by Jordan on the regular day blank form, plaintiff’s name being signed to it by Jordan, and was handed to Long, the agent, for transmission to its destination. As to whether or not, under these circumstances, Jordan was acting as the agent of the plaintiff in writing down this message, was a question left by the court for the jury’s determination. We are not in accord with the contention of counsel for appellant that the facts in this case bring it within the influence of Harris v. West. U. Tel. Co., 121 Ala. 519, 25 South. 910, 77 Am. St. Rep. 70; but rather within the scope of West. U. Tel. Co. v. Burns, 164 Ala. 252, 51 South. 373, and West. U. Tel. Co. v. Prevatt, 149 Ala. 617, 43 South. 106. There is nothing, therefore, in the action of the court in leaving this question for the jury’s determination, of which the plaintiff can complain. The trial court instructed the jury that, if the plaintiff, when he telephoned this message to the defendant’s office, knew and understood that it would be written on one of the usual blanks, and gave it to Jordan with that understanding, and such was plaintiff’s expectation, then he would be bound by the stipulations contained therein. There was no evidence of fraud or misrepresentation, and we are of the opinion that under the evidence in this case that question of fact was likewise properly left for the jury’s determi *268 nation. There is therefore no merit in those assignments of error, based upon the theory that the plaintiff was not bound as a matter of law by the stipulations contained in the message. The agent for the defendant was permitted to testify that when Jordan told him that the plaintiff desired to send a message, he instructed Jordan to tell plaintiff “the hour was late, and in all probability the office at Scottsboro would be closed before the telegram could reach there,” and that Jordan repeated this over the telephone to the plaintiff. We think this evidence was competent under the circumstances as part of the res gestse of the transaction; there was no error therefore in its admission. The question objected to, which forms the basis of assignment of error No. 2, was a leading question, and this suffices as an answer to the insistence thereon. The third assignment of error relates to a question asked by defendant of witness Stubbs, which properly came within the scope of cross-examination, and there was no error in overruling the objection thereto. Assignments of error 8 to 13, inclusive, relate to the action of the court admitting the evidence of witness Long, tending to show plaintiff’s familiarity with the blanks upon which messages were sent, which rulings we think were correct. There was no error in the refusal of charge 6 for the plaintiff. • It ignores the issues presented by pleas 10, 11, and 12, and, if it was intended to merely instruct the jury as to the duty of reasonable diligence, its substance was fully embraced in the oral charge of the court. What we have previously said indicates our view there was no reversible error in giving charge 0 for the defendant. In order to be bound by the stipulations contained on the message, it was not necessary that the plaintiff should have actually known the contents thereof. If he knew; that stipulations were on this blank, though he did not know their contents, and if he knew or had reason to believe that Jordan would use one of these blanks he is bound by the stipulations, whether he knew their contents or not, there being no evidence of fraud, deceit, or misrepresentation. West. U. Tel. Co. v. Prevatt, supra. Charge 3, requested by the plaintiff, was properly refused. Charge 4, refused to the plaintiff, was fully covered by the oral charge. We find no reversible error in the record, and the judgment of the court below will accordingly be here affirmed. Affirmed. ANDERSON, O. J., and SAYRE and MILLER, JJ„ concur.