117 So. 289


6 Div. 901.Supreme Court of Alabama.
May 10, 1928.Rehearing Denied June 7, 1928.Page 662

Appeal from Circuit Court, Jefferson County; John Denson, Judge.Page 663


Francis R. Starke, of New York City, and Cabaniss, Johnston, Cocke Cabaniss, of Birmingham, for appellant.

The duty of the defendant is to be determined with reference to the Interstate Commerce Act, provisions of the message blank, and defendant’s rules on file with the Interstate Commerce Commission. Exclusive jurisdiction over the subject of interstate and foreign communications by telegraph has been committed by Congress to the Interstate Commerce Commission. West. Union v. Hawkins, 198 Ala. 682, 73 So. 973; West. Union v. Warten Cot., 208 Ala. 454, 94 So. 493; West. Union v. Barbour, 206 Ala. 129, 89 So. 299, 17 A.L.R. 103; Id.,210 Ala. 135, 97 So. 136; West. Union v. Beasley, 205 Ala. 115,87 So. 858; West. Union v. Brown, 234 U.S. 542, 34 S.Ct. 955,58 L.Ed. 1457; Postal Tel. Co. v. Warren-Godwin L. Co.,251 U.S. 27, 40 S.Ct. 69, 64 L.Ed. 118; Priester v. West. Union,212 Ala. 271, 102 So. 376; West. Union v. Czizek, 264 U.S. 281,44 S.Ct. 328, 68 L.Ed. 682; 41 Stat. at L. 474 et seq.; George N. Pierce Co. v. Wells Fargo Co., 236 U.S. 278, 35 S.Ct. 351,59 L.Ed. 576; Great Northern R. Co. v. Merchants’ Elevator Co.,259 U.S. 285, 42 S.Ct. 477, 66 L.Ed. 943; Adams Ex. Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L.R.A. (N.S.) 257. For an unrepeated message the limit of liability is $500; the degree of negligence, if any, being immaterial. Adams Ex. Co. v. Croninger, supra; Wells Fargo v. Neiman-Marcus Co., 227 U.S. 469, 33 S.Ct. 267, 57 L.Ed. 600; B. M. R. Co. v. Hooker, 233 U.S. 97, 34 S.Ct. 526,58 L.Ed. 868, L.R.A. 1915B, 450, Ann. Cas. 1915D, 593; Southern R. Co. v. Reid, 222 U.S. 424, 32 S.Ct. 140, 56 L.Ed. 257; B. O. R. Co. v. Settle, 260 U.S. 166, 43 S.Ct. 28, 67 L.Ed. 189; K. C. Southern v. Carl, 227 U.S. 639, 33 S.Ct. 391, 57 L.Ed. 683; West. Union v. Esteve, 256 U.S. 566, 41 S.Ct. 584,65 L.Ed. 1094; Cultra v. West. Union, 44 I.C.C. 670; Tex. Pac. v. Gulf R. Co., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578. The connecting line stipulation in the message blank is valid and a complete defense to the action. Joyce on Elec. Law (2d Ed.) 1244; West. Union v. Way, 83 Ala. 542, 4 So. 844; 26 R. C. L. 576; 4 R. C. L. 891; West. Union v. Bowen, 203 Ala. 409,83 So. 283. Plaintiffs were concluded by the stipulations in the message blank, whether aware of them or not. West. Union v. Prevatt, 149 Ala. 617, 43 So. 106. There was no special agreement for prompt transmission of the message which destroyed the $500 limitation. Payment of the X U R rate only gained preference over ordinary telegrams, and could not operate to waive the terms of the message blank. Davis v. Cornwell, 264 U.S. 560, 44 S.Ct. 410, 68 L.Ed. 848. Breach of a duty to notify cannot enlarge the measure of recoverable damages on an interstate telegram; the damages being fixed by federal law. Barbour v. West. Union, 210 Ala. 135, 97 So. 136. The form of the action cannot enlarge the measure of recovery. Amer. Ry. Exp. Co. v. Levee, 263 U.S. 19, 44 S.Ct. 11,68 L.Ed. 140; Ex. Co. v. Lindenburg, 260 U.S. 584, 43 S.Ct. 206,67 L.Ed. 414. Defendant cannot be held negligent for failure to notify all its officers of the explosion at Liverpool at the moment of the explosion. 3 Cook on Corp. 2588; Watkins Salt Co. v. Mulkey (C.C.A.) 225 F. 739. It cannot be presumed that the message, if delivered to the Postal Line, would have reached Manchester without error or delay. St. L. S. F. v. Mills,271 U.S. 344, 46 S.Ct. 520, 70 L.Ed. 979. If there was negligence, it must be shown to be the proximate cause of plaintiffs’ loss. Cumberland Tel. Co. v. Atherton, 122 Ky. 154, 91 S.W. 257; S.W. Tel. Co. v. Thomas (Tex.Civ.App.) 185 S.W. 396.

Coleman, Coleman, Spain Stewart, of Birmingham, for appellee.

Where parties make an agreement impossible of performance, and the impossibility is known to the promisor but not to the promisee, he must be taken to have intended to make himself absolutely liable. Where performance becomes impossible subsequent to the contract, the promisor is not thereby discharged. Paine v. Parkhurst (C.C.A.) 205 F. 740; Blome v. Wahl-Henius Inst., 150 Ill. App. 164; Griel Bros. v. Mabson,179 Ala. 444, 60 So. 876, 43 L.R.A. (N.S.) 664; Brumby v. Smith, 3 Ala. 123; 9 Cyc. 627, 13 C. J. 639. If, from any cause, it is impossible to transmit a message, or if delay will be necessary, the company should inform the sender. Fleischner v. Pacific Post. Co. (C. C.) 55 F. 738; Postal Co. v. Nichols (C.C.A.) 159 F. 643, 16 L.R.A. (N.S.) 870; West. Union v. Cleveland, 169 Ala. 131, 53 So. 80, Ann. Cas. 1912B, 534; West. Union v. Hicks, 197 Ala. 81, 72 So. 356; West. Union v. Bickerstaff, 100 Ark. 1, 138 S.W. 997, Ann. Cas. 1913B, 242; Engelhard Son v. West. Union, 176 Ky. 806, 197 S.W. 435; Davis v. West. Union, 198 Mo. App. 692, 202 S.W. 292; Carswell v. West. Union, 154 N.C. 112, 69 S.E. 782, 32 L.R.A. (N.S.) 611; Mackorell v. West. Union, 90 S.C. 498, 73 S.E. 359, 875. The Interstate Commerce Act or tariffs on file make no reference to extra urgent rates.


Under the first count of the complaint, the plaintiffs assumed the burden of showing that the defendantnegligently failed to promptly transmit and deliver plaintiffs’ cablegram as it undertook to do. There is nothing in the evidence that tends to establish such negligence, unless it can be said that defendant’s use of the British Post Office telegraph service, for transmission of the message from London to Manchester over the British line, was negligence per se, under the circumstances shown.Page 665

By the express terms of the contract, defendant was authorized “to forward this message over the lines of any other company when necessary to reach its destination.” Defendant’s British terminal, from whence it relayed its message to Manchester, had been put completely out of service the day before, August 14th, and the cablegram went to defendant’s London office. Hence it cannot be presumed or inferred from those facts alone that resort to the British line in that emergency ? there remaining at least forty-five minutes in which that line might make timely transmission and delivery to defendant’s office at Manchester ? was an act of negligence and a breach of defendant’s duty to plaintiff. The evidence in fact is merely neutral.

But under the second count the case stands differently. There plaintiffs declare simply upon defendant’s failure to deliver
before the close of the Liverpool market, a breach of contractual duty; and the burden was cast upon defendant, if it would escape liability for the breach, to show that its failure to deliver seasonably was not the result of any negligence or wrongful omission on its part. W. U. T. Co. v. Barbour,206 Ala. 129, 131, 89 So. 299, 17 A.L.R. 103; W. U. T. Co v. Merrill, 144 Ala. 618, 622, 39 So. 121, 113 Am. St. Rep. 66; 26 R. C. L. 550, ? 57.

Defendant knew the nature of the message, and understood the pressing importance of its delivery at Manchester before 9:30 a. m., United States central time, or 4:30 p. m., British time. It had for that reason undertaken, for an extra charge, to give this message a preferential standing over all ordinary messages filed for transmission ahead of it; thus recognizing a reasonable danger of fatal delay if transmission followed the ordinary course without such a preference. It was therefore the manifest duty of defendant to notify the British line of the nature of the message and the urgency of its delivery before 4:30 p. m., and to arrange with that line, if possible, for the preferential handling of the message over its wire from London to Manchester, if necessary, by the payment of an extra charge. And, to acquit itself of negligence, defendant was bound to show either that those things were done, or that they could not be done; and, if the latter, defendant should further have shown that no other and speedier mode of transmission, however circuitous, was then available. W. U. T. Co. v. Fuel, 165 Ala. 391,396, 51 So. 571. When a message is transmitted in its turn, in the order of its reception, due diligence has been shown, and an injurious delay resulting necessarily from the prior handling of messages previously filed imposes no liability. And this court has said that “messages must be sent in the order of their handling in, without favor or partiality.” Daughtery v. Am. Un. Tel. Co., 75 Ala. 168, 178
(51 Am. Rep. 435). But these rules do not affect the question of defendant’s diligence in securing the promptest possible action by the British line, and insuring by every precaution reasonably possible a sufficiently speedy transmission of the message. Defendant’s duty, growing out of its own undertaking, was not fully and properly discharged by merely handing over
the message in cipher to the British line (a government agency, presumptively immune to liability for its negligence) for transmission, with only 40 or 50 minutes remaining for a timely and effective delivery to defendant’s office at Manchester. And we think it is reasonable to infer that, if the indicated duty had been performed, the message would have been more speedily handled, and would have been delivered in due time to Bashley at Manchester.

We therefore hold that, under the evidence, defendant was legally responsible for the delay between London and Manchester, and must answer in damages under the second count of the complaint.

The third and fourth counts are based upon the allegation that defendant knew, at the time it accepted the message for transmission, that it would be unable to deliver it before the close of the Liverpool market (third count), or that it would be unable to carry out the terms of its agreement, and deliver according to the agreement (fourth count), and that, knowing this, defendant failed to inform plaintiffs of that inability to perform.

The evidence does not sustain the allegation that defendant knew, at the time it accepted the message, that it would be unable to deliver it as it contracted to do. Conceding, without deciding, that defendant’s Birmingham office had constructive knowledge of the mishap to its Liverpool terminal, preventing the direct handling of cablegrams to Manchester, and possibly entailing some delay therein, this falls very far short of knowing that it could not execute its undertaking to transmit and deliver plaintiff’s message, which included the right to use other lines when necessary.

On the face of the evidence, defendant was perfectly able to substantially perform its contract, and the failure to do so, seasonably and satisfactorily, was due to its subsequent omission of a collateral duty. The result is that plaintiffs show no right to recover under counts 3 and 4. And, it may be noted, under those counts no recovery could be had on account of the New York hedge transaction, because no damages in that behalf were claimed.

Prior to the federal act of 1910, amending the Interstate Commerce Act (49 USCA ? 1; Comp. St. ? 8563), telegraph companies “had a common-law liability from which they might or might not extricate themselves accordingPage 666
to views of policy prevailing in the several states. Thereafter, for all messages sent in interstate or foreign commerce, the outstanding consideration became that of uniformity and equality of rates. Uniformity demanded that the rate represent the whole duty and the whole liability of the company. It could not be varied by agreement; still less could it be varied by lack of agreement. The rate became, not as before a matter of contract by which a legal liability could be modified, but a matter of law by which a uniform liability was imposed.” W. U. T. Co. v. Esteve Bros., 256 U.S. 566, 572,41 S.Ct. 584, 586 (65 L.Ed. 1094). In that case the action was for error in the transmission of an unrepeated cable message, and the court declared that “the limitation of liability attached to the unrepeated cable rate is binding upon all who send messages to or from foreign countries until it is set aside * * * by the Commission.” See, also, Postal Tel.-Cable Co. v. Warren-Godwin Co., 251 U.S. 27, 40 S.Ct. 69, 64 L.Ed. 118; W. U. T. Co. v. Czizek, 264 U.S. 281, 44 S.Ct. 328, 68 L.Ed. 682; and W. U. T. Co. v. Priester, 48 S.Ct. 234, 72 L.Ed. ___.

In the instant case, defendant’s liability is effectually limited to $500, and under the federal decisions we are bound to give effect to this limitation. As to this, it is immaterial under what count or counts plaintiffs might be entitled to recover, for the limitation is equally effective upon all. The rate and limitation prescribed represented “the whole duty and * * * liability of the company.” W. U. T. Co. v. Esteve Bros.,256 U.S. 566, 572, 41 S.Ct. 584, 586 (65 L.Ed. 1094). And, as said in Barbour v. W. U. T. Co., 210 Ala. 135, 97 So. 136:

“It is immaterial in what form of action the plaintiff claims his damages for mental anguish [here for a lost sale] whether for failure to perform the initial duty to transmit or deliver, or negligence in failing to notify the sender of defendant’s inability to deliver, after having undertaken the interstate transmission and delivery of the message.”

Though regarded, in a sense, as a separate and distinct obligation from the primary obligation to transmit and deliver (W. U. T. Co. v. Barbour, 206 Ala. 129, 131, 89 So. 299, 17 A.L.R. 103), the obligation to inform the sender of inability to deliver is a duty implied from the primary undertaking, and is strictly subordinate to all of its terms; and, indeed, it seems axiomatic that no merely derivative and secondary obligation can impose a larger liability than the primary obligation itself. Here the limitation of liability affects the entire contract, its implied terms equally with its expressed terms, and it cannot be escaped by the adoption of any particular form of action on the contract.

Our conclusion is that plaintiffs are entitled to recover in this action $500 and not more. The judgment of the circuit court will be corrected by reducing the recovery to that amount, and, as thus corrected, will be affirmed.

Corrected and affirmed.

ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.

On Rehearing.

When a judgment is corrected and affirmed on appeal, with any substantial change in the amount or terms of the judgment, favorable to the appellant, the costs of the appeal are automatically cast upon the appellee, just as in cases of nominal reversal.

This being the practice, it was not necessary to mention the matter of costs in the opinion. It may as well be said, however, that the costs of the appeal in this case will fall upon the appellee.

We adhere to the conclusions stated in the original opinion, and the application will be overruled.