Western Union Telegraph Co. v. Bowman

HARALSON, J.

It was admitted on the trial, that the house of the plaintiff at Whistler, the place to which the message to plaintiff was sent, was beyond the free delivery limit, — the same: being over a half mile from the telegraph office.

There were three counts in the complaint, each in case, to recover damages for- the failure to deliver a telegraph message, sent by the son and agent of the plaintiff to the latter from Montgomery to Whistler, Alabama,

*191The first count avers, that on account of defendant’s negligence in not delivering the message, the plaintiff lost a valuable situation which was vacant and open to his employment, and which had been obtained for him.

The second avers that the plaintiff lost a valuable situation which was vacant and open, and which he would have been employed to fill, but for defendant’s negligence in not delivering- the message within a reasonable time after its reception, etc.

A demurrer was sustained to the 3rd count, and as the appeal is by defendant, it isi allowed to pass without consideration.

The 4th count was added by way of amendment, and was intended to cover alleged defects in the other counts, by adding, that the residence of the plaintiff was in the radius of free delivery, and by stating the time, more definitely, in which defendant was kept out of employment offered him; and the case was really tried upon this count.

The demurrers to the 1st, 2nd and 4th counts were properly overruled.

On the trial it was admited by the attorneys for plaintiff, that Whistler was a village containing less than 5000 inhabitants, and rule 50 of the book of rules, which was admitted in evidence without objection read: “Messages will be delivered free within a radius of one mile from the office within any city or town of 5,000 or more inhabitants. Beyond these only the actual cost of the delivery service will be collected; the manager will, however, see that such cost- is as reasonable as possible.”

The printed language on the back of the written message to the plaintiff, which message was put in evidence, was, “Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at- a greater distance, a special charge will be made to cover the cost of such delivery.”

The defendant interposed pleas numbered 1 to 7, inclusive. Thé 1st and 2nd were the general issue. Demurrers to the 3rd and 4th were overruled and plaintiff took issue on them. Issue was joined on the 5th and 6th, and the demurrer to-the 7th was: sustained.

*192If there was error in sustaining the demurrer to this last plea, it was error without injury, since what was set up therein, might have been availed'of under the plea of the general issue.

The plaintiff filed special replications to the defendant’s pleas, demurrers to which were sustained, except to the 3rd, which laist replication set up, that at the time said telegram was received by defendant at its Whistler-office, it was the custom of the defendant to' deliver telegrams beyond the free delivery limit established by defendant for the government of its Whistler office, and at the place where plaintiff resided at that time, without requiring the payment of the extra charge provided by the rule of the company invoked by defendant in its said pleas.

The regulation which plea 3 avers formed part of the contract, does not expressly provide that the special charge for delivery beyond the free delivery limits should be prepaid, and therefore, it was possible for the parties to have contracted with reference to the custom set up. in replication three, without contravening the terms of the written contract. That the replication does not aver that the contract was in fact made with reference to the custom, is not specified in the demurrer as a ground of objection. As against any ground of demurrer that is specified with sufficient, particularity, the replication Was good.

The plaintiff’s witness, Ed. Bowman, testified, that when he delivered the telegram to- the agent at Montgomery, the latter told him that it was a very small place; that he had no messenger boys there, and that Mr. Coleman was the operator there, and he Avould deliver the telegram. He also testified that he told this Montgomery operator, right where, in WhisÜei*, his father, the sendee of the message, lived, and that it was the custom to deliver- telegrams any where in Whistler, regardless of the half mile- limit. Coleman, the operator at Whistler, testified, that he had, prior to that time,, delivered messages a,t Bowman's house without demanding the extra charge1 for the delivery; that his custom was to deliver the massage outside the limit and *193tlien demand tlie extra charge, which was from ten to fifteen cents.

The telegram was sent from Montgomery, as has ap-jiearecl, to plaintiff a,t Whistler, by Ed. Bowman the alleged agent of the plaintiff. Mr. Janney at Montgomery was the person with whom the alleged contract of employment of plaintiff was made. Ed. Bowman while testifying for plaintiff, stated that he Avent to see Mr. Jan-ney in Montgomery, and asked him if he had an opening for an iron moulder, and Mr. Janney said, yes. Here the defendant objected to the Avitness testifying to AAdiat Avas said to him by Mr. Janney, because ii Avas hearsay and immaterial and the objection was overruled. Objection was raised before there Avas any indication that the Avitness Avould answer. If he knew any thing tending to sIioav that there Avas a contract of engagement entered into between his father, acting through him as his agent, and Janney, the evidence Avas competent, If his answer Avas objectionable to defendant, he should have moAred to exclude it. The witness Avas asked by plaintiff: “Did you tell him, (the operator at Montgomery) AAdiereabouts in Whistler your father lived?” He replied, “Yes sir.” The answer was objected to, on the ground that it Avas incompetent. If open to the objection made to it, the objection came too late. Neither the question, nor the ansAver Avas subject to objection after the ansAver came. The defendant could not by delaying objection, speculate as to' what the ansAver might be, fa.Arorable or unfavorable to him, and if not favorable, to interpose the objecton he did. — Insurance Co. v. Tillis, 110 Ala, 202; 2 Mayfield’s Digest p. 574, § 739.

There Avas no reversible error in alloAving the plaintiff, after the opening argument for plaintiff had been made, to prove by the sendee, that the twenty-five cents alleged in the complaint to have been paid for sending the message, Avas in fact paid. The recall of the Avitness to make this proof Avas a matter within the discretion of the court. — Dyer v. State, 88 Ala. 225; Insurance Co. v. Moog, 78 Ala. 286.

*194It is always permissible for the defendant to show, in order to reduce the prima facie amount of recovery, in cases of a discharge of plaintiff from ■ service, that the plaintiff obtained, or could have obtained other employ-, ment by the 'exercise of reasonable diligence on hisi part, and the burden of proving this fact rests on the defendant. — Wilkerson v. Black, 80 Ala. 332.

The facts developed on the trial, in the testimony of Ed. Bowman for plaintiff and John Janney for defendant, left it too uncertain for the court to determine, as a matter of law, that there was a contract of employment for services between the parties. The evidence was such that the jury might have found that there was an offer of employment by Janney to plaintiff for a definite time at certain wages, which he was prevented from accepting by the failure of defendant to deliver the telegram-in a reasonable timé.

The court in its original charge to the jury, in leaving it to them to determine whether or not there Avere agreements between the plaintiff, through his agent, Avith the Foundry Company at Montgomery, such as amounted to a contract that he Avould get the employment for a definite length of time, and if they so found, the plaintiff AArould be entitled to recover, if the agent at Whistler failed to deliver the telegram to the sendee Avithin a reasonable time after its receipt, committed no error. This question, under the evidence, avus one proper for the determination of the jury. — Bryan v. Bank, 79 Ala. 262; Drennen v. Smith, 115 Ala. 396.

Charges from 1 to 5, inclusive, were properly refused. Dorsey v. State 134 Ala. 553; L. & N. R. R. Co. v. Sandlin, 125 Ala. 586; M. & O. R. R. Co. v. George, 94 Ala. 201.

. Nor Avas there error in refusing to give the other charges requested by defendant. Some were misleading, others misplaced the burden of proof, and all Avere subject to some vice malting them! bad.

Affirmed.