14 F. 710 (D.Kan. 1882), White v. Western Union Telegraph Co.

Citation:14 F. 710
Party Name:WHITE, WASHER & KING v. WESTERN UNION TELEGRAPH CO.
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 710

14 F. 710 (D.Kan. 1882)

WHITE, WASHER & KING

v.

WESTERN UNION TELEGRAPH CO.

United States Circuit Court, D. Kansas.

June Term, 1882

Page 711

'The Western Union Telegraph Company. All messages taken by this company subject to the following terms: To guard against mistakes or delays the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same, nor for mistakes or delays in the transmission or delivery, or for non-delivery, of any repeated message beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delay arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this company is hereby made the agent of the sender without liability to forward any message over the lines of any other company when necessary to reach its destination. Correctness in the transmission of messages to any point on the lines of this company can be insured by contract in writing, stating agreed amount of risk and payment of premium thereon at the following rates, in addition to the usual charge for repeated messages, viz.: 1 per cent. for any distance not exceeding 1,000 miles, and 2 per cent. for any greater distance. No employe of the company is authorized to vary the foregoing. The company will not be liable for damages in any case where the claim is not presented in writing within 60 days after sending the message. 6-18-1879. Send the following message, subject to the above terms, which are agreed to: 'To McGinnity, Adams & Sherry, St. Louis: Sell fifteen July wheat; sell rye fifty-two or more.

'WHITE, WASHER & KING.'

The mistake in transmitting the dispatch was in substituting the words 'fifty' July wheat for the words 'fifteen' July wheat, as the message was originally written, and the plaintiff's brokers having sold 50,000 bushels of wheat for July delivery, a change in the market caused loss to the plaintiffs, who claimed damages by reason of the error in transmitting the dispatch.

Tomlinson & Griffin and W. W. Guthrie, for plaintiffs.

Everest & Waggener, for defendant.

FOSTER, D.J., (charging jury.)

I desire to get before your minds the facts upon which you are to pass in arriving at a verdict from the evidence in this case. There has been a great deal of discussion about the law, and some discussion upon the evidence. I will first call your attention to the issues in this case, and the facts that are admitted and uncontroverted, and the facts remaining for you to pass

Page 712

upon by your verdict. It is not controverted in this case that the plaintiffs, White, Washer & King, in the month of June took to the Western Union Telegraph office, in Atchison, this dispatch for transmission to their agents at St. Louis, Missouri. It reads as follows; that is, the written part: '6-18-1879. To McGinnity, Adams & Sherry, St. Louis: Sell fifteen July wheat; sell rye fifty-two or more. ' When the dispatch was received by the parties to whom it was transmitted, in the place of fifteen it read fifty-- 'sell fifty July wheat.' This is an error or mistake it seems that had occurred in the transmission of this dispatch from some cause or other, and in its transmission from Atchison to the persons to whom it was addressed in St. Louis. That in pursuance of the dispatch which they received they made a contract according to its directions and sold in the name of White, Washer & King, to some parties in St. Louis, fifty thousand bushels of wheat instead of fifteen. It is claimed here, and I believe it is admitted, that this dispatch, construed by the terms and understood by men dealing in grain, 'fifteen' meant fifteen thousand July wheat. After the error was discovered, which was within a day or two, the plaintiffs in this case sought to relieve themselves from this contract, as it was not in accordance with what they intended to make; it was throwing a much larger burden and contract on them than they intended to enter into; and they had a conversation with the manager of the defendant company at Atchison, and stated the mistake and error, and the difficulty that it had got them into, and asked that the company should relieve them from it, and assume the responsibility and take the contract off their hands, or give some directions about it; that the company did not do so. Mr. Levin, agent of defendant at Atchison, states that he did not have authority to act in that matter; at any rate, defendant did not do so, and no action was taken on its part, and two days afterwards plaintiffs in this case made the best of terms they could to settle up with the other parties in St. Louis, and be relieved from the responsibility of this contract, and in doing so it appears they sustained a loss of something over $900. They sustained damage by reason of this error, by reason of the over amount of thirty-five thousand bushels, of nine hundred and forty some odd dollars. Now they bring this suit against the Western Union Telegraph Company to recover back these damages, alleging in their petition that the Western Union Telegraph Company, its agents, servants, and employes, were guilty of carelessness or negligence in transmitting this dispatch, and thus this mistake or error occurred, and from that arose the damages.

Page 713

Now, the paper upon which this dispatch is written is a form prepared by the defendant company, and in it are certain rules and regulations limiting and restricting their liability in the transmission of the dispatch, and having been signed by the plaintiffs with these terms and conditions, which they say are agreed to, this in substance forms the contract upon which this dispatch was to be transmitted. I say it in substance forms it, and limits it. There are some things, however, that are sought in this contract by the defendant company to relieve it from certain liability which the law will not permit, and that is that they cannot contract for immunity from damages occasioned by the culpable negligence or gross carelessness of their employes; and hence, if this mistake or this error arose from the culpable negligence or gross carelessness or willful neglect of the employes of the defendant company, then the defendant company would be responsible for the damages that the plaintiffs have sustained. Because, while the law imposes upon this corporation, not all the duty and responsibility of a common carrier yet they owe to the public certainly some degree of care and diligence on the part of their employes and servants to transmit and deliver the message properly, and safely. I say they owe some degree, although not a high degree; perhaps a slight degree of care and diligence would be all that would be required under the law.

The burden rests upon the plaintiffs in the case to maintain the issues which they present; that is, the burden rests upon the plaintiffs to show that this error or mistake occurred through the culpable negligence or gross carelessness of the operators or employes of the defendant company. It is not sufficient for them to say there is a mistake which has occurred in transmitting this dispatch to the office of the company in St. Louis, but they must show that it occurred through the gross carelessness or culpable negligence of the employes of the defendant company. The defendant in this case, of course, denies this carelessness or negligence, and it further claims that it should be relieved from responsibility for the transmission of this dispatch because it was obscure; and there is a stipulation in this printed matter, upon this form, in which it stipulated for immunity for the transmission of dispatches in cipher or obscure messages. That is a reasonable stipulation, and an alternative restriction that the law would permit the company to make; that is, if the dispatch is in cipher or obscure, that they do not understand the meaning of it, if the operator does not understand the meaning of it, and did not understand the importance of the dispatch, and the necessity

Page 714

of using care and diligence, and damages in consequence of that might result and naturally follow from a failure to transmit the dispatch correctly, then the law says, if the operator did not understand it, the company should not be held responsible for the damage. So these are the two questions I wish to submit to you for your determination: First, were the agents, servants, and employes, or operators, (perhaps I might confine it,) guilty of culpable negligence or gross carelessness in transmitting this dispatch, and did the error or mistake arise from that culpable negligence or gross carelessness? Next, did the operators or employes understand what this dispatch meant, or was it obscure? These are the two questions, gentlemen of the jury, for you to determine; and I have formulated the law upon these two questions, and will read it to you. If you find from the evidence that the telegram in question was erroneously and incorrectly transmitted or received through the culpable or gross negligence of the operators in the employment of the defendant company, either at Atchison or St. Louis, or both, and that the operators understood the meaning of said telegram, then the plaintiffs are entitled to a verdict.

But if you should find from the evidence that the error was not occasioned by reason of the culpable negligence of the defendant's operators, but occurred through climatic influences, such as storms, lightning, rain, or other causes temporarily...

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3 practice notes
  • 18 F. 717 (E.D.Ark. 1883), Jones v. Western Union Telegraph Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • Invalid date
    ...11 Neb. 87; (S.C. 7 N.W.Rep 868;) S.C. 23 Alb.Law.J. 277; Sweatland v. Ill. & M. Tel. Co. 27 Iowa, 455; White v. Western U. Tel. Co. 14 F. 710. Under his contract with the defendant the plaintiff is entitled to judgment for 10 times the amount paid by him for transmitting the message an......
  • 154 U.S. 1 (1894), 59, Primrose v. Western Union Telegraph Company
    • United States
    • Federal Cases United States Supreme Court
    • May 26, 1894
    ...in settling with the sellers thereof, suffered a loss of upward of $20,000. The circuit court, following White v. Western Union Tel. Co., 14 F. 710, and Jones v. Western Union Tel. Co., 18 F. 717, ruled that there was no evidence of gross negligence on the part of the defendant and that, as......
  • 128 S.E. 500 (N.C. 1925), 457, Thos. G. Hardie & Co. v. Western Union Telegraph Co.
    • United States
    • North Carolina Supreme Court of North Carolina
    • June 24, 1925
    ...W. U. Tel. Co. v. Esteve Bros. & Co., supra; Primrose v. Tel. Co., supra; Jones v. Tel. Co. (C. C.) 18 F. 717; White v. Tel. Co., 14 F. 710, 5 McCrary, 103; 26 R. C. L. 574; Jones on Tel. & Tel. Companies (2d Ed.) § 407. It follows, therefore, from what is said above, that the plain......
3 cases
  • 18 F. 717 (E.D.Ark. 1883), Jones v. Western Union Telegraph Co.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • Invalid date
    ...11 Neb. 87; (S.C. 7 N.W.Rep 868;) S.C. 23 Alb.Law.J. 277; Sweatland v. Ill. & M. Tel. Co. 27 Iowa, 455; White v. Western U. Tel. Co. 14 F. 710. Under his contract with the defendant the plaintiff is entitled to judgment for 10 times the amount paid by him for transmitting the message an......
  • 154 U.S. 1 (1894), 59, Primrose v. Western Union Telegraph Company
    • United States
    • Federal Cases United States Supreme Court
    • May 26, 1894
    ...in settling with the sellers thereof, suffered a loss of upward of $20,000. The circuit court, following White v. Western Union Tel. Co., 14 F. 710, and Jones v. Western Union Tel. Co., 18 F. 717, ruled that there was no evidence of gross negligence on the part of the defendant and that, as......
  • 128 S.E. 500 (N.C. 1925), 457, Thos. G. Hardie & Co. v. Western Union Telegraph Co.
    • United States
    • North Carolina Supreme Court of North Carolina
    • June 24, 1925
    ...W. U. Tel. Co. v. Esteve Bros. & Co., supra; Primrose v. Tel. Co., supra; Jones v. Tel. Co. (C. C.) 18 F. 717; White v. Tel. Co., 14 F. 710, 5 McCrary, 103; 26 R. C. L. 574; Jones on Tel. & Tel. Companies (2d Ed.) § 407. It follows, therefore, from what is said above, that the plain......