Opinion
6 Div. 887.
October 23, 1919.
Appeal from Circuit Court, Jefferson County; Charles W. Ferguson, Judge.
Forney Johnston and W. R. C. Cocke, both of Birmingham (Albert T. Benedict and Francis R. Stark, of counsel), for appellant. Counsel insist that the sole remedy was ex contractu, and that the suit, being ex delicto as for the breach of a public duty, cannot be maintained, and cite authorities in support thereof. They insist that plea 3 was not subject to demurrer, and in support thereof cite the following authorities: 37 Cyc. 1692; 2 Joyce on Electricity, 1244; Southern Express Co. v. Saks, 160 Ala. 621, 49 So. 392; Walter v. A. G. S. R. R. Co., 142 Ala. 474, 39 So. 87; Southern Railway Co. v. Goldstein Brothers, 146 Ala. 386, 41 So. 173; 4 Ruling Case Law, 891; Southern Railway Co. v. Barclay, 1 Ala. App. 348, 56 So. 26; S. N. Ala. R. R. Co. v. Wood, 66 Ala. 167, 41 Am. Rep. 749; McGehee v. Western Union Tel. Co., 169 Ala. 109, 53 So. 205, Ann. Cas. 1912B, 512; W. U. Tel. Co. v. Emerson, 161 Ala. 221, 49 So. 820; Robinson v. W. U. Tel. Co., 68 S.W. 656, 57 L.R.A. 611; W. U. Tel. Co. v. Prevatt, 149 Ala. 617, 43 So. 106; Lehue v. W. U. Tel. Co., 175 N.C. 561, 96 S.E. 29; W. U. Tel. Co. v. Way, 83 Ala. 542, 4 So. 844.
Harsh, Harsh Harsh, of Birmingham, and W. J. Slaughter, for appellee. Counsel also discuss the character of action and insist that it was proper, and cite authorities thereto. They insist that there were no errors in plea 3, and cite the following authorities: 2 Joyce, Electrical Law, §§ 763-980a; W. U. Tel. Co. v. Hicks, 197 Ala. 81, 72 So. 356; B. R. L. P. Co. v. Littleton, 201 Ala. 141, 77 So. 565; Pullman Car Co. v. Meyer, 195 Ala. 397, 70 So. 763; W. U. Tel. Co. v. Bowen, 76 So. 986; Lehue v. W. U. Tel. Co., 175 N.C. 561, 96 S.E. 29; 2 Corpus Juris, 461; 21 Ruling Case Law 481; 21, 99, 102, 111, and 854.
The report of the former appeal of this cause, to the Court of Appeals, will be found in 76 So. 985. The report of the appeal will contain the amended first count.
The defendant interposed, besides the general issue, pleas 3 and 5 to the amended first count of the complaint, charging that the defendant (appellant) agreed, for a reward paid, to use due diligence promptly to pay or cause to be paid to plaintiff's wife at Citronelle, Ala., the sum of $15; that, notwithstanding the duty thus assumed, the defendant failed to pay or cause to be paid the said sum for a long time, to wit, two days; and that negligence characterized the failure of the defendant to observe its stated duty in either paying the money to plaintiff's wife or in causing the money to be paid to her. The report of the appeal will reproduce plea 3. Plea 5 would assert the like manner of defense.
As appears, the amended first count attributes negligence to the defendant with respect either to the averred duty promptly to pay the money to plaintiff's wife, or promptly to cause the money to be paid to her. It is manifest that the alternative thus alleged imported a breach, by the defendant, of the duty arising from its obligation promptly to pay the money to plaintiff's wife, or a breach arising from the assumption by defendant of the obligation to secure some other agency or person promptly to pay the money to plaintiff's wife. The present necessities of the case do not require a consideration of the sufficiency of the amended first count, as upon the demurrer thereto, nor an ascertainment of the effect of the phrase "to use due diligence by telegraphic communication" upon the scope and consequent obligation of the duty alternatively averred in the amended first count.
With respect to the sufficiency of plea 3, the controlling inquiry is the effect of this paragraph of the order:
"When the company has no office at destination authorized to pay money, it shall not be liable for any default beyond its own lines, but shall be the agent of the sender, without liability, and without further notice, to contract on the sender's behalf with any other telegraph or cable line, bank or other medium for the transmission and final payment of this order."
The contract is to be construed as a whole. The intent is, of course, to control. All of its provisions must, if fairly possible, be accorded some effect and perform some office. It is not to be supposed that a distinct expression of purpose was intended to be neutralized by another provision, especially where the term or provision supposed to be opposed is not as clear and positive in its design or effect as is the provision it is supposed to render impotent. In any event, it is the judicial duty, in the construction of a writing, to harmonize apparent contradictions, if, indeed, the presence of conflicting expressions is, in fact, disclosed by the writing. 6 R.C.L. pp. 835-838.
It is plain from the terms employed that, if the company had no office at destination authorized to pay money, special engagements were desirable and applicable, and bound the parties. This feature is not predicated of the absence of an ordinary telegraph office, but of a telegraph office with authority to pay money. Where an office with that authority did not exist at the place to which the money was to be, in a sense, transmitted, the condition to the application of the other provisions of the quoted paragraph was present. According to this stipulation, the absence at destination of a telegraph office authorized to pay money clothed the company with a measure of exemption from liability from defaults intervening "beyond its own lines" — from defaults that, if occurring, would be those of the sender's (not the company's) agents or agencies, to engage, to contract for which, "on the sender's behalf," the company was empowered. The stipulated exemption from liability was limited to defaults intervening "beyond its own lines." These words, "beyond its own lines," were not intended to do more than define the stage, in the process of transmitting the money, at which the exemption from liability should begin. For defaults in respect of its duty to contribute to the payment of the money by the use of the company's wires the exemption from liability was not assured. They were not intended to neutralize the condition (the absence of a telegraph office authorized to pay money) upon which the company was empowered, expressly, to exercise reasonable diligence and care to effect the final payment of the order through the means of agents or agencies engaged by the company, as agent for the sender, "on the sender's behalf." The authority thus conditionally conferred upon the company did not specifically obligate the company to communicate telegraphically with, or to transmit the money to, a telegraph office that was not authorized to pay money. The employment, without negligence, of the company lines to transmit the money with due diligence was contemplated; and to this service and diligence the allusion, in the quoted paragraph, to "its own lines," must be referred. To accord this phrase any other effect would result in neutralizing, without warrant, the stipulation with respect to the absence, at destination, of a telegraph office authorized to pay money, and enforce the unsound conclusion that the exemption provided could not avail if the company maintained at destination a telegraph office that was not authorized to pay money.
Construing the same stipulation, it was said in Lehue v. W. U. Tel. Co., 175 N.C. 561, 563, 96 S.E. 29, 30:
"The stipulation printed in the money order application signed by the husband contains a distinct provision that, if the place at which the money was to be paid was not a money order office, then the company should be allowed to employ a bank to make the ultimate payment, and that the company would not be liable for the acts or neglect of the bank. The bank was made the agent of the sender for the further transmission of the money beyond the defendant's money order offices."
That a telegraph company may validly stipulate, in respect of this character of service, upon the condition and as the quoted paragraph provided, is not a matter of doubt, the stipulation being reasonable. Lehue v. W. U. Tel. Co., supra. Such a company may, in the regular course of its business, determine which of its offices it will constitute money order offices, and with reference to that fact contract as the quoted paragraph stipulates.
Plea 3 sought to avail of the exemption from liability provided in the quoted paragraph. According those stipulations their appropriate legal effect, this plea was not subject to the demurrer. It averred that Citronelle, the point of destination, was not a telegraph office authorized to pay money, and that with reasonable promptness the company engaged a bank in Mobile, as plaintiff's agent, to transmit the money to plaintiff's wife. The plea presented a full answer to both alternatives of the amended first count. If, as the plea asserting the stipulation alleges, the defendant with due promptness and diligence performed its duty with respect to the telegraphic communication of the money order, the defendant could, under the stipulation, be held liable only for a culpable failure diligently to exercise, as the agent of the sender, the authority to employ for the sender a further medium to effect the final payment of the order; any default or dereliction on the part of the medium properly engaged by the company being attributable to the thus secured agent of the sender, for the dereliction of which the defendant could not be held responsible. The court, therefore, erred in sustaining the demurrer to plea 3.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and SAYRE, JJ., concur.
SOMERVILLE, GARDNER, and THOMAS, JJ., dissent.