The Montgomery advertiser., 1904-12-12
WESTERN UNION TEL. co. BOW.
 MAN

MAN.
 Action Against Telegraph Company for |. Failure to Promptly Deliver Tele-
 gram.-Appeal from the City Court
 of Mobile.
 1. -Action against. telegraph company for failure to deliver telegram; suf- ficiency of complaint-In an action against telegraph company to recover damages for failure to promptly deliv- CT telegram. a count of complaint which ayers that. by reason of the de- fendant's negligence in not delivering the message. the plaintiff lost a val uable situation or position of employ ment, which was vacant and open to his employment and which had been obtained for him, is sufficient as stat ing cause of action.
 2. Same: same.--In such a case, a count of the complaint which ayers that the plaintiff lost a valuable situa- tion which was vacant and open to him. and which he would have been employed to fill, but for the defend- ants negligence in not delivering the message within a reasonable time af- ter its reception, sufficiently states a cause of action.
 3. Same; sufficiency of replication.- In an action against a telegraph com pany to recover damages for failure to promptly deliver a telegram. where, by special plea the defendant sets up that prior to the sending of the mes sage mentioned in the complaint, 1t had established a limit within which 1t undertook to make free delivery of the messages sent over Its wire, and upon the printed blank upon which the mes sage was written. and forming a part of and in addition to the contract for sending other messages. including the message in this case, there was stip- ulation that for tho delivery of mes sages outside the free delivery limits, a special charge would be made, and that the plaintiff to whom the message in the present suit was sent. did not live within the free delivery limits of the place of destination of said message. and no consideration was paid or ten dered by the plaintiff to the defendant for the delivery of this message beyond said free delivery limits, a replication presents a sufficient answer to the de- fense set up in said special plea. which ayers that at the time the telegrams involved in this suit was received a. its place of destination, it was the GUS tom of the defendant to deliver tele- grams beyond the free delivery limits established by the defendant at said place, without requiring the prepayment of the extra charge provided for by the rule invoked by the defendant in said special plea.
 4. Action against telegraph company for failure to promptly deliver a mes sage; admissibiIity of evidence.-In an action against a telegraph company to recover damages for negligence ir failing to promptly deliver message. whereby it is alleged in the complaint the plaintiff lost valuable position which was vacant and open to him, and which he would have been employed to fill. 1t is competent during the examin- ation of the person who. as the plain- tiff's agent, sent the telegram, and who had negotiated for his employment. to ask him whether or not, in his con- versation with the person who was to employ the plaintiff, ne asked sa Id per son if he had a position such as the plaintiff desired, and wished to employ a person therefor.
 :. Same; same.-In such a case. after the witness, who represented the plain tin in the negotiation for the employ. ment. and who. as the agent of the plaintiff sent the telegram, has testi- fled in answer to question, that he told the operator of the defendant at the place from which the message was sent, where the plaintiff lived at the place of destination, such answer is not subject to be excluded upon the ground that it was incompetent evidence; the objection to the answer coming too late. G i-
 6. Trial and its incidents; discretion ary of the court to allow evidence to be introduced after argument of the counsel-During the trial of case, it is within the sound discretion of the trial court to allow witnesses to be recalled and evidence infroduced aftar argument of counsel to the jury. and reviewable-