Opinion
5 Div. 889.
March 25, 1926. Rehearing Denied May 13, 1926.
Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.
J. W. Strother, of Dadeville, for appellant.
The provision on the back of the telegram blank was for the benefit of the telegraph company, and could be waived by it, and such waiver may be by parol. W. U. Tel. Co. v. Miller, 196 Ala. 620, 72 So. 168; W. U. Tel. Co. v. Heathcoat, 149 Ala. 623, 43 So. 117; Security Co. v. Riley, 157 Ala. 553, 47 So. 735; Galliher v. State, etc., Co., 150 Ala. 543, 43 So. 833, 124 Am. St. Rep. 83. Defendant waived the provision as to delivery limits by undertaking to deliver the message upon payment of usual charges, knowing the address on the message was beyond its delivery limits. A printed provision on a telegraph blank will not exempt the company from liability for negligence. W. U. T. Co. v. Miller, supra.
Barnes Walker, of Opelika, for appellee.
Brief of counsel did not reach the Reporter.
Defendant's special plea No. 3 was defective in not alleging that the matter of plaintiff's claim for damages, based upon defendant's failure to seasonably deliver the telegram, was matter peculiarly within the knowledge of plaintiff. Nashville, etc., Ry. Co. v. Hinds, 178 Ala. 657, 59 So. 669; Id., 5 Ala. App. 596, 59 So. 670; Code 1923, § 8048. However, no apt ground of demurrer pointed out this defect, and hence the demurrer to the plea was properly overruled.
The letter which plaintiff testified he wrote to defendant on August 31st, about two weeks after defendant's default in the delivery of the telegram, was a substantial compliance with the duty imposed upon him by the contractual provision set up in the plea. The testimony in that behalf made the issue one of fact for the jury, and hence defendant was not, as for this plea, entitled to the general affirmative charge.
Charge No. 14 was erroneously given for defendant. Plaintiff's replication No. 5 to defendant's plea No. 2 asserted that, notwithstanding the provision as to free delivery limits, defendant, after discovering that plaintiff lived without those limits, undertook to make the delivery for a reward which it expected to receive and did receive, and was negligent therein. The issue under this replication was one of fact for the jury, but the charge referred to ignored this issue, and was, in practical effect, an affirmative instruction for defendant. If the jury believed the evidence tending to support the replication, they might properly have found that defendant waived the provision set up by the plea and was guilty of negligence in not effecting a delivery of the telegram on the day it was received at the delivering office in Birmingham. In that event, a verdict for plaintiff would have been proper. W. U. T. Co. v. Miller, 196 Ala. 620, 72 So. 168. However, since the jury found for plaintiff on this issue, as evidenced by their verdict for 62 cents, this instruction was not prejudicial.
There was evidence for plaintiff tending to show that, had the message been delivered to him with reasonable promptness, he would have been able to secure transportation to his sick brother's home by automobile in time to see him before he died. Hence the trial court was clearly in error in giving to the jury charge 8 as follows:
"I charge you, gentlemen of the jury, that the burden of proof rests upon the plaintiff to prove to your reasonable satisfaction the time and trains by which the plaintiff might have reached his brother's bedside, and arrived at or near the scene of his brother's illness in time to see his brother before his death, before you would be authorized to assess any damages whatever in favor of the plaintiff, on the theory that any delay in the receipt of the message by the plaintiff prevented him from seeing his brother before he died." (Italics supplied.)
The effect of the charge was to eliminate from consideration the availability of travel by automobile, contrary to plaintiff's evidence, and, probably, to eliminate the recovery of substantial damages on account of the deprivation referred to.
For this error the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded.
THOMAS, MILLER, and BOULDIN, JJ., concur.