Heathcoat v. Western Union Tel. Co.

McCLELLAN, J. The action is for damages for breach of a contract to promptly transmit and deliver a telegraphic message. The message was sent by a father to a daughter, and recited that she should come at once if she would see her brother alive. The report of this case, on former appeal may be found in 149 Ala. 623, 43 South. 117. The complaint avers “that said C. B. Jones acted as agent and for the benefit of the plaintiff in delivering said message to defendant as aforesaid.” To justify the refusal of the general affirmative charge for the defendant, it was incumbent on the plaintiff to offer evidence tending to support the conjoint averment of agency and benefit. This the plaintiff did not do, as appears affirma [341] lively from this controlling extract from the testimony of Jones: “I had not been requested by my daughter to send any such telegram, and sent the telegram because I wanted her to know of the accident to her brother.” — Postal Tel. Cable Co. v. Ford, 117 Ala. 672, 28 South. 684. The message itself, even if considered, which cannot be done, because of the general rule that agency is not provable by. evidence alone afforded by the act of agency itself, does not tend to show that in sending the telegram Jones acted as the agent of the plaintiff. There being no agency shown, there could be no ratification.- The judgment is affirmed. Affirmed. Tyson, C. J., and Dowdell and Andekson, JJ., concur.