Western Union Telegraph. Co. v. Miller

ANDERSON, C. J. (1, 2) The sender of a message who writes or causes it to be written upon one of the blanks of the telegraph company, containing reasonable terms and provisions, is estopped to deny their binding force, or to plead ignorance of their contents before delivering the message for transmission, unless such ignorance is induced by honest mistake on the part of the sender, or fraud or misrepresentation on the part of the company. — W. U. T. Co. v. Prevatt, 149 Ala. 617, 43 South. 106; McGehee v. W. U. T. Co., 169 Ala. 109, 53 South. 205, Ann. Cas. 1912B, 512; W. U. T. Co. v. Worley, 12 Ala. App. 494, 68 South. 558; W. U. T. Co. v. Harwell, 91 Ala. 340, 8 South. 649. The pleadings show that the sender was the agent of the sendee, and this being the case, the stipulation was binding on the principal. [624] —McGehee’s Case, supra. He was bound by said stipulations notwithstanding his agent did not read them and had no actual knowledge of the contents. — Prevatt’s Case, supra, and cases there cited. The plaintiff’s replications, or some of them, do not deny the agency or the existence of the stipulation as set up in defendant’s special pleas, and of which the law charged him with notice, whether he had knowledge of same or not, and said replications seek to avoid the same upon a want of knowledge of the stipulation, although the law charged him with notice. In other words, he seeks to avoid the effect of the stipulations in the contract because his agent did not read the same or have it specially brought to his attention. Replication 2 does not set up a waiver of the stipulation, as it does not charge that defendant’s agent had notice that the address was beyond the free delivery limits when making the charge for transmission, and, as above stated, the plaintiff cannot avoid the stipulation merely because his agent had no knowledge of a provision in the contract and of which the law charged him with notice. This replication is not governed by the holding in the case of W. U. T. Co. v. Burns, 164 Ala. 252, 51 South. 373. It is true that this replication 2 is quite similar to replication 4 in said case to plea 2, but its sufficiency seems not to have been questioned or considered upon appeal. Moreover, the court held, under the peculiar facts in that case, that it was a question of fact, and not of law, as to whether or not the defendant’s agent, who transcribed the message, which was handed him upon ordinary paper, onto one of the defendant’s forms, was acting as agent for the plaintiff in doing so. If he was not so acting, then the plaintiff was not bound by the stipulation in the transcribed form, unless he had knowledge of same, as distinguished from notice imputed to.him by law if it was transcribed by himself or agent. The pleadings are not set out in full in the Burns Case, supra, but it is evident that the question of agency of the person who transcribed the message was open, or it was charged that he was the agent of the defendant instead of the plaintiff, and in this event the replication was good in avoidance of the stipulation. Here the pleadings, to which the replication attempts an issue, disclose the. fact that the message was written on the defendant’ form, containing the stipulation, by the plaintiff’s agent. (3-5) The provision contained upon the back of the. telegram blank was for the benefit of the company, and may be waived.by [625] it, and such waiver may be in parol. — W. U. T. Co. v. Heathcoat, 149 Ala. 623, 43 South. 117; Caufield v. Finnegan, 114 Ala. 48, 21 South. 484; Security Co. v. Riley, 157 Ala. 553, 47 South. 735; Galliher v. State Mut. L. I. Co., 150 Ala. 543, 43 South. 833, 124 Am. St. Rep. 83. Replications 3, 4, and 5, in effect, set up a waiver of the provision by the acceptance by the defendant’s agent of certain charges for the delivery of said message, he having full knowledge that the address was beyond the free delivery limit. If the defendant’s agent undertook to deliver the message at the address, knowing that it was beyond the free delivery limit for a fixed charge, which was paid by the plaintiff’s agent, this would constitute a waiver of the provision. It is no doubt true that the waiver relied upon should not be the mere general averment of such, or the conclusion of the pleader, but we do not think that such is the case with replications 3, 4, and 5; they set up briefly and concisely the facts constituting the waiver. It is true each of those replications, like number 2, negative knowledge of the plaintiff’s agent of the provision, but this would be immaterial, if the defendant waived said provision, and this averment, when coupled with the averment of the facts constituting the waiver, was but an unnecessary undertaking on the part of the plaintiff and did not render said replications subject to the defendant’s demurrer. (6) Replication 6 sets up a new undertaking for a reward, and it is insisted that said new undertaking should be read in the light of the provision upon the back of the form relieving the defendant from any liability. It is sufficient to say that the replication charges that defendant negligently conducted itself, and as against which the provision on the blank could not exempt it. — 7 Mayf. Dig. 880. (7) Plea 4 sets up contributory negligence upon the part of the sender in not giving the plaintiff’s proper address, that there was no such address as the one given, and the plaintiff could not therefore be found at the place designated. Replication 8 to this plea was insufficient, as it charges no facts placing a duty or obligation upon the defendant to have made efforts to locate the plaintiff elsewhere or how or in what manner the address given would have aided in the location of the plaintiff. (8) We are not impressed with the suggestion of appellee’s counsel that this court should not review the rulings on the special pleas and replications under the authority of Wes. U. T. Co. [626] v. Louisell, 161 Ala. 231, 50 South. 87. The records in the two-cases are not similar. In the Louisell Case, the pleas, replications, etc., were interposed long before the last amendment of the complaint, and it did not appear that they were refiled after the amendment, or that issue was joined as to same. Here the complaint was demurred to after amendment, and on the same day, and after overruling the demurrer to the amended complaint, the pleas were interposed, and while they did not specify the complaint as amended, they were filed after the demurrer, and the demurrer went to the complaint as amended; therefore the pleas were necessarily interposed to the complaint after it was amended. It is true that after the ruling upon the pleading and before the cause was submitted to the jury, the plaintiff withdrew count 2 and replication 7, but this did not eliminate the pleas because not reinterposed after said withdrawal of count 2, as said pleas went to the complaint and each count thereof, separately and severally. The discussion of the replications demonstrates the immateriality of the evidence of J. F. Miller as to his knowledge of the provision upon the back of the telegram. Charge 1, given for the plaintiff, could have well been refused for the use of the word “preponderance.” — 7 Mayf. Dig. p. 142. Moreover, it was calculated to mislead the jury into the belief that the defendant was required by a greater degree of proof to establish its pleas than was required by the plaintiff to establish his complaint. It required the plaintiff to establish his complaint to the reasonable satisfaction of the jury, but required the defendant to establish his pleas to the reasonable satisfaction of the jury but by a “preponderance” of the evidence. Whether or not the giving of same would be reversible error we need not determine, as the case must be reversed for other reasons. It is sufficient to say that it can be refused with safety upon the next trial. Charge 2, given for the plaintiff, if not otherwise misleading, could have well been refused because of the use of the word “preponderance.” Same as to plaintiff’s given charge 3. There was no error in giving plaintiff’s charge 4. (9) The trial court erred in refusing the defendant’s requested charge 6. The complaint sought damages because of a failure to attend his father’s funeral, and the burden was upon him to show that he could have reached the place in time to be at [627] said funeral had the message been properly delivered. — 37 Cyc. 1731; W. U. T. Co. v. Emerson, 161 Ala. 221, 49 South. 820. The complaint does not claim for a failure to get the message in time to have the funeral postponed, and that it would have been postponed to await the arrival of the plaintiff, but that the plaintiff failed to get the message in time to attend the funeral, and in order to recover this element of damages, the burden was upon him to show that the delay in the delivery was the proximate cause of his not getting to the funeral. To do this he had to show that he would have gone and that he could have arrived in time for the funeral had the message been promptly delivered, and this' proposition was substantially asserted in defendant’s refused charge 6. It is conceded by both sides that this charge 6 is incorrectly set out in the record, as it contains the word “father” instead of mother, and the original contained- the word “mother.” This error in the original charge no doubt justified its refusal, but the principle announced as to same is sound. The judgment of the circuit court is reversed. Reversed and remanded. Mayfield, Somerville, and Thomas, JJ., concur.