American District Telegraph Co. v. Roberts & Son, Inc. ( 1929 )

On Rehearing. Upon the original consideration of this case, we assumed and stated that the defendant was, at least, a quasi public service corporation. This was evidently founded upon its name and the character of the business in which it was engaged, but, upon a reconsideration, we find that this assumption and statement was unfounded and is not supported by the facts, and, from aught appearing the contract in question was but a private one.

The defendant is not subject to the control of the Public Service Commission, and has the right to contract with whom it pleases, and is not legally bound to serve the public. Browne v. National District Tel. Co., P. U. R. 1921A, 113; Re American District Tel. Co., P. U. R. 1921E, 519; Wolff Packing Co. v. Court of Industrial Relations, 262 U.S. 522, 43 S. Ct. 630,67 L. Ed. 1103, 27 A.L.R. 1280.

This being the case, the contract in question falls within the influence of our case of McKinney v. Mobile O. R. Co.,215 Ala. 101, 109 So. 752, 48 A.L.R. 998, and the limitation therein is not void because contrary to public policy, and a breach of same, whether negligently done or not, involves no breach or violation of a public duty, and this is so whether the complaint be on contract or in tort.

The trial court erred in rendering judgment for the plaintiff for any sum in excess of $50, with interest thereon since the injury. The foregoing opinion is modified, and the judgment is corrected and affirmed for $50 and interest, and the application for rehearing is overruled. Appellee is taxed with the cost of this appeal.

SAYRE, THOMAS, and BROWN, JJ., concur.