Western Union Telegraph Co. v. Louissell

THOMAS, J. This case has been once before our Supreme Court (West. Union Tel. Co. v. Louissell, 161 Ala. 231, 50 South. 87), which was before the creation of this court-. Upon reversal there for the error of the trial court in giving the general affirmative charge in favor of the plaintiff (appellee here), the case was again tried, which resulted in a verdict for the defendant (appellant here). That verdict was, upon motion of the plaintiff, set aside, and a new trial granted, the action of the lower court in doing which was, on subsequent appeal to this court by defendant, affirmed. — West Union Tel. Co. v. Louissell, 4 Ala. App. 493, 95 South. 186. On the last trial the court again gave the general affirmative charge in favor of plaintiff, and there was verdict and judgment accordingly. The defendant again appeals, assigning as error the action of the court in giving such charge; in refusing to give several special charges requested; in overruling a demurrer to the complaint; and in overruling defendant’s objections to two questions propounded by plaintiff to one of the latter’s witnesses in the course of his examination on the stand. — 568 — The last trial was had upon count 2, as last amended, of the complaint, to which there was no plea, except the general issue, and which count, together with the demurrers thereto, the reporter will set out. The status of the pleading, therefore, as well as of the evidence, is somewhat different from what it was on the former appeals, meeting deficiencies there intimated; and, in the light of these changes, which will be hereinafter noted, what was said by our Supreme Court and by this court on such former appeals will, in connection with what we here say, be sufficient to an understanding of the case and to demonstrate,- we think, the correctness of our conclusion that the demurrers to said count 2, as last amended, of the complaint were without merit, and that the trial court committed no error, either in overruling them or in giving the general affirmative charge as requested by plaintiff. Our Supreme Court, while considering the case as presented to it on the first appeal, in reviewing the action of the lower court in giving the general affirmative charge for plaintiff, among other things said: “One material allegation of the complaint, as to which there was no direct proof, and of which it is difficult to see how there could be direct proof, or any proof other than that by a jury drawn as an inference from the facts, is this: ‘That had said telegram been duly and properly transmitted the City Bank & Trust Company would have declined payment of said draft as instructed hy said telegram, but that by reason of the negligence of the defendant,’ etc. What direct and uncontradicted evidence there was to prove this allegation we are unable to find.” The complaint was so amended on the present trial as to obviate the necessity for any such proof by substituting in lieu of the allegation so quoted, the following allegation: “That had said telegram — 569 — been duly and properly transmitted and delivered to said City Bank & Trust Company, it would have been the duty of the City Bank & Trust Company to deóline payment of said draft as instructed by said telegram, but that by reason of the negligence of the defendant” etc. With this exception, said count 2 of the complaint, which was so under consideration on the former appeals, is unchanged from what it was then, except also that in lieu of the following allegation then in the count, to wit: “By reason of which said error the City Bank & Trust Company were misled as to the draft which plaintiff intended to revoke, and by reason of such error paid the said draft which plaintiff had issued to Jamies J. Manson, and charged the same to plaintiff’s account,” etc. —the following allegation was substituted, to wit: “By reason of which said error it did not bedome the duty of the City Bank & Trust Company to decline payment of said draft, which was drawn in favor of J ames J. Manson, and the City Bank & Trust Company had a right to and did pay said draft, tohich plaintiff had issued to Jamies J. Manson, and charged the same to plaintiff’s account,” etc. The effect of this last change of averment was likewise, as in the case of the other change first noted, to relieve the necessity of making proof of a fact — alleged in the count before amendment and omitted, as seen, by the amendment — that was not susceptible of direct and positive proof, to wit, that the said City Bank & Trust Company was misled by the said error in the telegram. As to whether it was misled or not had reference to a) mental status — a condition or state of things existing in the mind — a fact of such a nature that it co-uld only be proved as an inference from other facts. So long as — 570 — such an allegation remained in the count, it was necessary, under the decision of our Supreme Court mentioned, that the case go to the jury, and not he withdrawn from them by the affirmative charge, since it was their function, and not the court’s to say whether or not such an inference should be drawn from the evidence. The two mentioned amendments, therefore, removed from the complaint every allegation that was not susceptible of direct and positive proof; and, there having been on this trial positive and direct and uncontradicted proof of the fact of the alleged error in the telegram (which was not the fact when the case was under review by our Supreme Court, as will appear from an examination of their decision), and also direct, positive, and uncontradicted proof of every other material allegation .of the complaint, as so amended (which, as noted, was likewise not the fact when the case was before our Supreme Court) we are of the opinion that, in here holding that the lower court did not err in this trial in giving the general affirmative charge for plaintiff, we are acting, not in conflict, but in entire accord, with the said decision of our Supreme Court. Under the complaint as last amended, we are clear in the opinion that, if, as hypothesized in said charge, the jury believed the evidence, there was no alternative but to find, as stated in the charge, a verdict for the plaintiff. The defendant introduced no evidence whatever; but the chief insistence of its counsel (we judge to be) is that each and both of the amendments, as pointed out, of the count upon which the trial was had, and which amendments wrought, as seen, material changes in such count, were such as to render the count demurrable in this: That the plaintiff, in each of such amendments, in order to obviate the previous necessity of proving facts that were susceptible of proof only by inferences to be — 571 — drawn by the jury as before pointed out, alleged a conclusion of law as to the duty of the said City Bank & Trust Company, with reference to the payment and nonpayment of the draft, that the law does not authorize to be drawn from the facts set forth in the count. We agree that the legal conclusions are alleged, as contended, but we do not agree that they are not warranted by the facts alleged. On the contrary, we are of opinion that they are. The giving of a draft or checck does not operate as an assignment to the payee of the funds in the hands of the drawee, but the drawer has the right to countermand its payment, and if he does so by notice to the drawee, before the presentation of the check or draft, the drawee would be under duty, as alleged in the count, not to pay or accept it. — People’s Savings Bank v. Lacy, 40 South. 346; Nat. Com. Bank v. Miller, 77 Ala. 168, 54 Am. Rep. 50; Sands, etc. v. Matthews, 27 Ala. 399; Anderson v. Jones, 102 Ala. 537, 14 South. 871; Andrews v. Frierson, 134 Ala. 626, 33 South. 6. And we are of opinion, as a matter of law, that notice to a drawee bank not to pay a draft, stated in the notice to be drawn in favor of “James F. Mani-son for $250.00,” is not, in the absence of more, notice to it not to pay a draft then actually drawn and subsequently presented in favor of “James J. Manson for $250.00.” The bank had a right and was under duty to act upon the letter of the notice or instruction, unless it knew that there was error therein. Presumptively— from the facts alleged in the count — it had no such knowledge, but had a right to assume, and to act upon such assumption, that the defendant telegraph company (who, in transmitting and delivering to the bank plaintiff’s message, acted as plaintiff’s agent) correctly transmitted such message.— Western Union Tel. Co. v. Farmers’ & Merchants’ Bank, 7 Ala. App. 637, 62 South. 250. This message, as delivered to the bank, read, as — 572 — was alleged and as was proved without dispute on this trial: “Decline payment of James F. Manison for $250.-00, unless advised further by me.” Such a message, in and of itself, furnished the bank no warrant or authority for declining payment of a draft drawn by plaintiff on the bank for $250 in favor of “James J. Manson”; and, consequently, so far as any direction or information contained in said message was concerned, the bank was under duty to pay the latter named draft when presented. If, independent and outside of the message, the bank knew facts, or came into the possession of facts, at any time before it accepted or paid the latter named draft, from which it knew or was bound to know that there was a mistake in the message, and that the plaintiff intended by the message to direct them not to pay the draft drawn in favor of “James J. Manson” (for instance, if the bank had known that, prior to the time .the plaintiff sent the message, he had given a draft to “James J. Manson” for $250, and had not given one at all to “James F. Manison” or any other person of like name), then probably the bank, after receipt of the message directing it not to pay the “James F. Manison” draft, would have been under duty to decline payment of the “James J. Manson” draft when presented. Presumptively, however, the bank had no knowledge that there was a mistake in the telegram; and, this being true, the plaintiff was not required to negative, by allegation, the existence of such knowledge. If it in fact existed, such knowledge, as a result of the changed averments of the complaint noted, became defensive matter, and the defendant, under the plea of the general is-s<ue, was at liberty to prove any facts from which it might be inferred that the bank had such knowledge. If it did have knowledge of the mistake in the telegram, then defendant’s negligence in erroneously transmitting — 573 — the telegram- was not, and could not be, said to have been the proximate cause of the injury; for in such case, notwithstanding the error, the bank knew better, and should have declined payment of the draft. It (the bank), and not the defendant, would, in the event it knew of the error,, have been liable to the plaintiff for the sum of money paid out on the draft. While it was not necessary, we think, as stated, to the making out of plaintiff’s prima facie case, yet he introduced the bank officials, who testified that they had no knowledge of the mistake. The defendant, as said, introduced no testimony whatever. The bare fact of the similarity between the name “James F. Mani-son,” in whose favor the telegram to the bank, instructing nonpayment, stated the draft to be, and the name “James J. Manson,” the payee of the draft subsequently honored by the bank, does not, standing alone, of and by itself,, afford, as contended, any evidence, inferential or otherwise, that the bank knew or should have known that there was a mistake in the telegram, and that such telegram was really intended to stop payment of the “James J. Manson” draft. There are so many names, and differences in distinct names are often so slight, people are so numerous, commerce so extensive and diversified, and the business dealings and other transactions of individuals, involving the payment of money and the drawing of checks or drafts, are so varied, both as to character and as to the persons with whom such individuals may deal, that it would be monstrous, we think, to assume that when a customer wires from a distant point his bank not to pay a draft stated to have been drawn by him in favor of “James F. Manison” for $250, the bank should know, from such telegram alone not to pay such customer’s draft in favor of “James J. Manson” for $250, when, subsequent to the — 574 — receipt of the telegram, such draft is presented to the bank. With this telegram before it or in mind, when “James J. Manson” presented his draft for payment— although his name is similar to the name (“James F. Manison”) stated in the telegram — how did the bank know but what the plaintiff had, at or before the time he sent the telegram, given two drafts for $250 — one to “James J. Manson” and one to “James F. Manison” —and but what the latter draft would be also presented later? The bank had a right, and it was its duty, to so presume, unless it knew to the contrary. It would have acted at its own peril if it had done otherwise. Nor was it under legal duty to inquire as to’ whether or not a mistake had been made. The bank is not the guardian of its customers — at least, not to this extent— and when one of the latter gives, or sends by agents, as in this case, an instruction not to' pay a particular named draft, the bank is under no obligation, the instruction being, as here, clear and unambiguous, to inquire if a mistake has not been made. It may stand upon the letter of that instruction; and if a mistake has been made in such instruction by the customer himself, then he, of course, is in no position to complain against any one; but, if a mistake has been made by his agent in transmitting such instruction, then the agent, as the defendant was, is responsible for its negligence in that particular, and liable for the damages proximately resulting therefrom. Suppose, instead of being a suit by the plaintiff against the defendant telegraph company for $250 and interest for negligence in erroneously transmitting said message, this was a suit by the plaintiff against the said bank for $250, and interest, for having paid, after receiving such message, plaintiff’s draft to “James J. Manson” for $250. The plaintiff certainly could not — 575 — recover, by showing only that before the payment of said draft the plaintiff sent a telegram to the bank which, when delivered to the bank, directed them not to pay plaintiff’s draft to “James F. Manison” for $250. People’s Saving Bank v. Lacy, supra; Nat. Com. Bank v. Miller, supra. Such evidence, standing alone, would not only be insufficient to send the case to the jury; but a complaint in such a case, which alleged that the bank was notified, in advance of the payment or acceptance of the “James J. Manson” draft not to pay the “James F. Manison” draft, would have been demurrable. To make a case against the bank, even a prima facie one, something more would have to be shown— that is, that the bank knew certain facts from which, when it received the telegram, it was bound to know that it had reference to the James J. Manson draft. The defendant’s only chance to escape liability for its negligence in erroneously transmitting the telegram was to make a case against the bank by showing that, notwithstanding defendant’s error, the bank knew, or was in the possession of such facts that from them it was bound to know, of the mistake before it paid the Manson draft. There is no evidence in the case tending to so show either directly or inferentially. What we have said and the conclusions reached with reference to the demurrers and the affirmative charge render it unnecessary to consider the action of the court in its other rulings complained of and before mentioned. — Western Union Tel. Co. v. Whitson, 145 Ala. 426, 41 South. 405; Griffin v. Bass Foundry & Machine Co., 135 Ala. 490, 33 South. 177; Bowling v. M. & M. Ry. Co., 128 Ala. 556, 29 South. 584. The judgment appealed from is affirmed. Affirmed.