Poor v. Western Union Telegraph Co.
| Decision Date | 11 June 1917 |
| Parties | A. J. POOR, Doing Business as A. J. POOR GRAIN CO., Respondent, v. WESTERN UNION TELEGRAPH CO., Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court--Hon. Harris Robinson, Judge.
AFFIRMED (Conditionally).
Albert T. Benedict, S. J. McCullough and New, Miller, Carmack & Winger for appellant.
Harold M. Noble and McCune, Caldwell & Downing for respondent.
This is a suit to recover damages sustained by reason of a mistake negligently made by defendant in the transmission of a telegram to plaintiff Poor was a grain broker and commission merchant doing business in Kansas City, Missouri, under the name of A. J. Poor Grain Company. On August 4, 1913, a customer of plaintiff by the name of Townsdin, residing in Randall, Kansas, delivered to defendant's agent at that place a message to be sent to plaintiff which read as follows:
"Buy fifteen thousand Dec. wheat around eighty-nine."
The message which was delivered to plaintiff read:
"Buy fifty thousand Dec. wheat around eighty-nine."
As written and directed to be sent by Townsdin, the message was an order to buy fifteen thousand bushels of wheat, but as delivered to Poor it was an order to buy fifty thousand bushels.
The change arose through the negligence of the defendant. As directed in the telegram he received, Poor bought fifty thousand bushels and by telegram notified Townsdin of that fact. The latter immediately telephoned Poor that he had ordered and wanted only fifteen thousand bushels. Poor went to the defendant's office and told the agent of the mistake and asked him what disposition he should make of the extra 35000 bushels. The agent agreed to take the matter up with the company's general agent, but being unable to get any directions from him, informed plaintiff of that fact and told Poor to close out the wheat as best he could and put in his claim for the loss. Poor sold the extra wheat and sustained a loss of $ 712.50. This suit was then brought to recover that amount as the damages arising from defendant's wrongful failure to correctly transmit and deliver said message. Plaintiff obtained a verdict and judgment for the full amount sued for, and defendant has appealed.
The telegram was written by Townsdin on one of defendant's ordinary telegram blanks, which, on its face, directed the telegraph company to "Send the following message subject to the terms on the back hereof, which are hereby agreed to." On the back of the message was printed the following:
The message was an unrepeated message and the charge was the usual and regular price for sending a telegram of that length and distance, to-wit, forty cents, which was paid by the sender Townsdin.
The suit is not on the contract between the sender and the defendant, although the latter's duty to the sendee arises because that contract was created and performance thereof was undertaken by defendant. The suit is based upon the violation of defendant's public duty to correctly transmit and deliver the message. This public duty, arising upon the creation of the contract of transmission, the defendant owed the sendee even though the latter was not an immediate party to the contract. Hence plaintiff, as sendee, has a right of action based upon the violation of that public duty. [Western Union Tel. Co. v. Burris, 179 F. 92; State Bank of Commerce v. Western Union Tel. Co., 142 P. 156; Bailey v. Western Union Tel. Co., 76 A. 736; Western Union Tel. Co. v. Holder, 174 S.W. 552; Eureka Cotton Mills Co. v. Western Union Tel. Co., 70 S.E. 1040; Western Union Tel. Co. v. Jackson Lumber Co., 65 So. 962; Western Union Tel. Co. v. Commercial Milling Co., 218 U.S. 406, 420, 54 L.Ed. 1088, 31 S.Ct. 59.]
The telegram being from a point in Kansas to a point in Missouri was an interstate message, and its transmission was an act of interstate commerce. [Western Union Tel. Co. v. Texas, 105 U.S. 460, 26 L.Ed. 1067; Western Union Tel. Co. v. Pendleton, 122 U.S. 347, 30 L.Ed. 1187, 7 S.Ct. 1126.] Section 7 of the Act of Congress of June 18, 1910 (36 Stats. L. 544; F. Stats. Ann. 1912, Vol. 1., p. 111), section 1 of the original Interstate Commerce Act (24 Stats. L. 379; 3 F. Stats. Ann. 809), as amended by the Act of June 29, 1906 (34 Stats. L. 584; F. Stats. Ann. 1909, Supp., p. 255), known as the "Hepburn Act" with the "Carmack Amendment" thereto, declares that telegraph companies engaged in sending messages from one State to another State "shall be considered and held to be common carriers within the meaning and purpose of this Act," i. e. within the meaning and purpose of the entire Interstate Commerce Law as it then existed. Being, therefore, a common carrier within the meaning of the Interstate Commerce Statutes, and engaged in interstate commerce with respect to the particular message in controversy, the defendant telegraph company is subject to and governed by the Federal law as expounded and applied by the Federal Courts to the exclusion of all State laws and decisions. Undoubtedly, it is well established that the liability of common carriers of property, for any violation of their public duty in interstate shipments or carriage, is governed wholly by the Federal statutes relating thereto and by the rules of decision observed by the Federal courts in construing such statutes and in applying the general principles of law to the questions of liability. This has been decided so frequently of late years that it is hardly necessary to cite even a few of the many cases announcing that doctrine. [Adams Express Company v. Croninger, 226 U.S. 491, 57 L.Ed. 314, 33 S.Ct. 148; Missouri etc. R. Co. v. Harriman, 227 U.S. 657, 57 L.Ed. 690, 33 S.Ct. 397; Boston and Maine R. Co. v. Hooker, 233 U.S. 97; Hamilton v. Chicago, etc., R. Co., 177 Mo.App. 145, 164 S.W. 248; Kent v. Chicago, etc., R. Co., 189 Mo.App. 424, 176 S.W. 1105.] But plaintiff contends that Congress has not legislated upon the subject of the liability of telegraph companies nor upon the measure of damages governing in a suit in tort, and that, therefore, such matters are not controlled by Federal legislation and rules of decision. It is true, the Carmack Amendment to the Hepburn Act dealt with the liability of common carriers transporting property. And it is also true that section 6 of the Commerce Act, requiring common carriers subject to the provisions of said act to file with the Interstate Commerce Commission schedules of its rates, fares and charges for the transportation of passengers and property, is held not to apply to telegraph companies. [. But sections 1, 3, 15 and 20 of the Interstate Commerce Law do apply to such companies. Section 1, as stated before, makes the Act applicable to telegraph companies engaged in transmitting messages from one State to another; and requires that all charges for services rendered shall be just and reasonable, and all unjust and unreasonable charges are declared to be unlawful; and it further provides that messages "may be classified into day, night, repeated, unrepeated, letter, commercial, press, Government, and such other classes as are just and reasonable, and different rates may be charged for the different classes of messages." Section 3 provides for uniformity of charges for the different classes of service by making it unlawful to give preferences or advantages in any respect whatsoever. Section 20 provides that upon complaint being made to the Interstate Commerce Commission that any rate or classification, regulation or practice whatsoever of common carriers subject to the Act, including telegraph companies, the Commission shall have power to declare what rate, or practice, or regulation is reasonable and to forbid those found to be unjust, and to require the companies to adopt the one prescribed. Section 20 also covers the matter of making reports and keeping accounts. The Commerce Commission in its 24th An. Rep., p. 32 says: "The administration of the twentieth section of the Act to regulate commerce, so far as telegraph companies are concerned, gives rise to no very serious difficulty."
It is therefore, apparent that the Interstate Commerce statutes clearly bring interstate telegraph companies within the terms and subject to all the provisions...
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