Western Union Telegraph Co. v. Adams

ANDERSON, J.

This is an action ex contractu by the plaintiff, the sendee of a telegram, for a failure by the defendant to promptly deliver a message sent him by his brother, for the benefit and as agent of the plaintiff. “Whether the sendee has or has not the right to recover in tort for failure to deliver a telegram or for delay in its delivery, without avering or proving a contract to which he is a party or privy, it is clear upon principle, and the proposition is supported by the former decisions of this court, and by the decisions of courts of other jurisdictions, that, without such averment and proof, he cannot recover when his action is based upon contract, and seeks damages resulting from its breach.” — Postal Co. v. Ford, 117 Ala. 672 , 23 South. *659 684 ; Western Union Co. v. Adair, 115 Ala. 441 , 22 South. 73 and cases there cited; Shingleur v. Western Union Co., 72 Miss. 1030 , 18 South. 425 , 30 L. R. A. 444, 48 Am. St. Rep. 604 ; Western Union Co. v. Du Boise, 128 Ill. 248 , 21 N. E. 4 , 15 Am. St. Rep. 109 ; Gray on Com. by Tel. §§ 74, 75. Tli.e evidence not only fails to show that the plaintiff ivas a party or privy to the contract, but' there is an express negation by the sender, Max Adams, that he was acting as the agent of the plaintiff in sending the message.

There seems to be a small' class of cases where the sendee can sue ex contractu; that is, where the sender employs the telegraph company to communicate a message solely to benefit the person to whom the message is directed. But if the sender sends the message for his own benefit, notwithstanding it may benefit the sendee also, there is no ground for the imputation that he intends to part with his right of action for a. breach of the contract. Authorties supra. The sender in the case at bar admitted that he did not send the message as agent for the plaintiff, and that he sent it because he was his brother, and because he (the sender) wanted the plaintiff present at the bedside of their sick mother. The trial court erred in rendering judgment for the plaintiff, and the judgment is reversed; and, this case having-been tried by the judge without a jury, we will, under the practice act for Clay county, render a judgment for the defendant.

Reversed and rendered.

Tyson, G. J., and Downuix, and McOLkulan. J.T.. concur.