Tidwell v. Western Union Tel. Co.

SIMPSON, J.

— This is an action, by the appellant against the appellee, for negligence in the failure to deliAmr, Avithin a reasonable time, a telegram sent by the agent of the plaintiff to him, informing him of the death of his sister. Said telegram Avas -delivered to defendant’s agent at Ridersville, Ala., on the 6th day of February, 1908, and addressed to the plaintiff, at Maplesville, Ala., and Avas not delivered to the plaintiff until 2 p. m. on February 7, 1908, at Avhich time his sister had been buried; and he claims the cost of the telegram, also for mental anguish for being, by said delay, deprived of the consolation of attending the funeral of his sister. The defendant interposed tsvo pleas, alleging that, at the time of the sending of - said telegram and up to the time of delivery, the plainitff was not Avithin the free delivery limits of said company, at Maplesville. Demurrers were interposed to said pleas, which were overruled; and the first assignments of error relate to the overruling of said demurrers to said pleas Nos. 2 and 4.

Said pleas do not allege that defendant knew of the absence of the plaintiff from the free delivery limits, nor that the defendant made any effort to deliver said telegram, or to ascertain where the plaintiff was, nor that the plaintiff did not have any place of business or any residence within the free delivery limits. The plaintiff also, after the demurrers to said pleas were overruled, filed replications to said pleas, alleging that said plaintiff had a residence at Maplesville, within the free delivery limits, that his wife was at said residence during the time in question, that she was in telegraphic communication with him, and that if the telegram had been delivered at his residence his wife would have repeated it to him in time for him to have attended the funeral of his sister. Demurrers were sustained to said replications. So the question for decision in this case is: What is the duty of a telegraph company when the sendee has a residence within the free delivery limits, but is, at the time, personally out of said free delivery limits?

The duty of the telegraph company is to use due diligence to ascertain whether the sendee is within the free delivery limits; and it has been frequently held that the most natural and reasonable way to ascertain that fact is to inquire at his place of business or his residence. It would seem, also, even if the agents of the company knew that the sendee is temporarily absent from his home, unless they know at the same time that his absence is at such a distance, or of such a nature, that an inquiry here could not result in the telegram’s reaching him promptly, reasonable diligence would suggest that his home be visited, and his wife, or some other member of the .family, if there, be informed that-the telegram has been received. In his work on Electric Law, Mr. Joyce states that, “if the company is unable to make a personal delivery, it is its duty to deliver the message at the store or residence of the sendee, at the place of destination,” although, of course, if the sendee is within the free delivery limits, and cannot be found at his residence or place of business, it is still the duty of the messenger to make further efforts to ■ find him. — Joyce on Elec. Law, § 743, and notes.

The mere fact that the sendee is temporarily beyond the free delivery limits, when his residence and family are within the said limits, will not justify the agents of the company to relax their diligence and make no further effort to deliver the telegram. The company cannot shield itself behind a technical defense, when the circumstances are such as to suggest to any reasonable mind a leasable way to reach the sendee, Avithout imposing any greater labor on the agents of the company than would have been required to deliver the message if the defendant had been within the free delivery limits.

The court erred in overruling the demurrer to the defendant’s pleas Nos. 2 and 4, and in sustaining the demurrers to the replications.

The judgment of the court is reversed, the nonsuit set aside, and the cause remanded.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.