Collins v. Western Union Telegraph Co.

WEAKLEY, C. J. This action was brought, not for a falure to transmit or deliver a telegraphic message, but the gravamen of the complaint is that the message which the plaintiff actually received Avas not promptly delivered. The plaintiff did not produce or account for the absence of the AAadtten message lodged AAÚth the defendant’s agent at Albertville, nor give notice to the defendant to produce that message, and the city court, being of opinion that the Avritten message prepared by the sender, plaintiff’s agent, and delivered to the defendant at AlbertAdlle, Avas to be deemed the original message, in the situation of this case, refused to alloAV the plaintiff to introduce the message, or the envelope inclosing the same, which the defendant actually delivered to him at Birmingham. In this ruling there Avas error. There Avas no claim that any mistake had intervened in the transmission of the message, nor that the message delivered Avas not the very message received by the defendant, from the sender. Under-these circumstances the presumption is that the message delivered is a correct reproduction [417] of that received, and it ivas admissible in support of the complaint. — Western Union Tel. Co. v. Fatman, 73 Ga. 285, 54 Am. Rep. 877 ; Couyers v. Postal Tel. Co., 92 Ga. 619, 19 S. E. 253, 44 Am. St. Rep. 100 ; 2 Thompson on Neg. § 2521 ; 25 Am. & Eng. Ency. Law (1st Ed) p. 880. We do not find that the cases relied on by appellee to support the ruling of the city court conflict with what we now hold. — American Union Tel. Co. v. Daugherty, 89 Ala. 191, 7 South. 660 (s. c. sub nom. Daugherty v. Telegraph Co., 75 Ala. 168, 51 Am. Rep. 435), was a suit for the non-delivery of a message, and there the whole effort was to introduce secondary evidence of the message lodged with the defendant at the point whence it was to be transmitted. The exact and only point there decided, so far as it is necessary for us now to inquire, was that incompetent evidence had been admitted to prove the destruction of the message delivered to the company for transmission. In Whilden v. National Bank, 64 Ala. 1, 38 Am. Rep. 1, it was said: “There is some difficulty in determining whether the message delivered to a telegraphic office, or that which is delivered to the person to whom it may be addressed at the point of destination, is to be regarded as the original. Perhaps, under some circumstances, the one or the other may be considered the original. It is not now necessary to enter on that inquiry.’’ And the court proceeds to .hold that the message received, by the sendee was admissible upon two distinct grounds: First, because the message as written by the sender was without the jurisdiction of the court; and, second, because the appellants had voluntarily adjnitted to the witness the genuineness of the dispatch offered in evidence. So far from there being any holding that the message delivered to the sendee was secondary, not the original, there is obviously in the opinion a studied and cautious purpose to ¡avoid sxich holding. Tin1 case, however, supports rather than conflicts with the view that we. have taken. The delivery of the message to the plaintiff was the equivalent of an assertion by the defendant that it was the message it had received for transmission, and was equivalent of an admis [418] sion of its genuineness and correctness. If there were any valid terms or conditions upon the form employed by the sender which the message as prepared at Albert-ville would have disclosed, and which would have defeated the action, they could and should have been brought forward by plea. No such plea was interposed. There was no error in sustaining the demurrer to the second count of the complaint. The count failed to connect the plaintiff with the sending of the message, or to show any breach of duty to him of which he could complain. Reversed and remanded. Tyson, Simpson, and Anderson, JJ., concur.