Western Union Telegraph Co. v. Pauley

TYSON, C. J. — Only one contention is urged against the correctness of the judgment appealed from. It is that the breach of duty alleged, and upon which the recovery was had, was beyond the obligation assumed by defendant; that defendant fully discharged its undertaking or duty when it promptly transmitted the message to Linden and mailed it in the post office at that place, inclosed in an envelope properly stamped and addressed to the plaintiff at Myrtlewood. If we concede that the averments of the complaint go to the extent contended for, and therefore subject to the demurrer interposed, the ruling of the court in overruling the demurrer, if error, was without injury. This is clearly and affirmatively shown by the written charge given at defendant’s request which appears in the record. By that charge the court correctly limited defendant’s liability, and imposed upon it no greater duty than the law placed upon it, as contended for by it. Indeed, this charge asserts the law in entire accord with the theory of defendant, and contains the identical proposition here contended for in support of the demurrer as the law of the case. It is true this charge is not shown by a bill of exceptions, but this is not necessary for the purpose for which we have here considered it. —Gambill v. Fuqua, 148 Ala. 448, 459, 42 South. 735; H. A. & B. R. R. Co. v. South, 112 Ala. 642, 20 South. 1003. Affirmed. Dowdell, Andeeson, and McClellan, JJ., concur.