Reed v. Western Union Tel. Co.

• Decision Date: 07 October 1896
• Citation: 37 S.W. 904,135 Mo. 661
• Parties: REED et ux. v. WESTERN UNION TEL. CO.
• Court: Missouri Supreme Court

37 S.W. 904

135 Mo. 661

REED et ux. v. WESTERN UNION TEL. CO.

Supreme Court of Missouri, Division No. 2.

October 7, 1896.

TELEGRAPH COMPANIES — LIABILITY FOR NEGLIGENCE — GROSS NEGLIGENCE — BURDEN OF PROOF — PROXIMATE CAUSE — LAW OF PLACE — DAMAGES — INTEREST.

1. A telegraph company cannot, by contract, relieve itself from liability for negligence of its servants in the transmission of messages. Wann v. Telegraph Co., 37 Mo. 472, overruled.

2. The distinction between negligence and gross negligence is not recognized in Missouri.

3. In an action against a telegraph company for damages resulting from errors in the transmission of a message, it was shown that the message was not transmitted as it was written by the sender, and that the addressee acted upon it as received. Held, that a prima facie case of negligence was established, placing the burden on the company.

4. In an action against a telegraph company for damages resulting from errors in the transmission of a message, it appeared that the message was delivered to the company at an office in the state of Iowa, for transmission to a point in Missouri. Held, that the contract was governed by the laws of Iowa relating to the liability of telegraph companies.

5. Plaintiff's agent residing in Iowa delivered to a telegraph company a message addressed to plaintiff in Missouri, stating that certain real estate owned by plaintiff could be sold for $1,300 cash. The message, when received by plaintiff, gave the price offered as $1,900, and plaintiff immediately telegraphed her acceptance, and forwarded deed by mail. Upon the receipt of plaintiff's answer accepting the price offered, the agent closed the contract of sale at $1,300. Held, that the negligence of the company would be regarded as the proximate cause of the loss of the difference between the price received and the market value of the lot.

6. The proper measure of plaintiff's damage is the difference between the price received and the actual market value of the lot.

7. The right of plaintiff to recover interest having been conceded on the trial, the allowance of interest cannot afterwards be assigned as error.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by James A. Reed and wife against the Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

This action is by a sendee or addressee of a commercial telegram against the telegraph company for negligence in its transmission, whereby the plaintiff or sendee was misled into authorizing her agent to conclude a contract of sale of a tract of land for $1,300 when she believed she was obtaining $1,900 therefor. Plaintiff's agent, Hedges, living in Cedar Rapids, Iowa, where her real estate was situated, delivered to the defendant telegraph company, to be transmitted to plaintiff, living in Kansas City, Mo., the following message: "Cedar Rapids, Iowa, May 25, 1889. James A. Reed, 306 Nelson Building, Kansas City, Mo.: Offered thirteen hundred cash, lot two, houses near planing mill. Must hear immediately. Can't get more. George T. Hedges." The regular tariff rate was paid by Hedges. This message when delivered was as follows: "Cedar Rapids, Iowa, May 25, 1889. James A. Reed, 306 Nelson Building, Kansas City, Mo. Offered nineteen hundred cash, lot two, houses near planing mill. Must hear immediately. Can't get more. George T. Hedges." It will be noted the offer was changed in transmission from "thirteen hundred" to "nineteen hundred" dollars. After requesting the operator and agent of defendant at Kansas City to verify the message on account of its importance, and having been informed by the operator that he had verified it, and she could rely upon it, plaintiff, ignorant of the error in the message received, on the same day, sent Hedges this telegram: "Sell property for amount offered. Will send deed by Monday, 27th." Armed with this power of attorney, Hedges, the agent, also ignorant of the mistake in his message to plaintiff, and supposing he was authorized to sell the lot for $1,300, received a part payment of the purchaser thereon, and gave a written memorandum of the sale, agreeing to make the deed and deliver possession. On the 27th of May, 1889, plaintiff and her husband joined in the execution of a deed to the purchaser, reciting a consideration of $1,900, and forwarded it to Hedges, who received it on the 29th. When Hedges received the deed, he thought possibly there was a mistake, owing to the insertion of $1,900, instead of $1,300, and suggested to the purchaser that they wait until he could write plaintiff; but, the purchaser threatening a suit, he delivered the deed, and accepted $1,300, which he remitted to plaintiff, less his commission. Upon receiving the letter, and being apprised for the first time of the mistake, plaintiff at once, and within the 60 days limited therefor, made claim for $600 damages, which being refused by defendant, she commenced this action. Defendant offered no evidence whatever to account for the mistake in the transmission of the message. The company relies upon various alleged errors to reverse the judgment recovered by plaintiff.

Karnes, Holmes & Krauthoff, for appellant. Kagy & Bremermann, for respondents.

GANTT, P. J. (after stating the facts).

1. It is earnestly insisted by defendant that its liability is limited by the following stipulation made by it with plaintiff's agent when it received and undertook to transmit the message: "All messages taken by this company are 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 nondelivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same." It is agreed that this was an unrepeated message. The position of defendant is that the stipulation limiting its liability for errors and mistakes in the transmission of said message is valid. It goes further, and asserts it is not even liable for the negligence of its operators in the transmission of said message; that it is only liable upon an averment and proof of gross negligence; and it is supported by most eminent authority in said claim. Primrose v. Telegraph Co. (1894) 154 U. S. 1, 14 Sup. Ct. 1098; Kiley v. Telegraph Co., 109 N. Y. 231, 16 N. E. 75; Telegraph Co. v. Stevenson, 128 Pa. St. 442, 18 Atl. 441; and many other cases. Moreover, such is the latest authoritative statement of the law on this subject by this court. Wann v. Telegraph Co., 37 Mo. 472. At the threshold, then, the question arises, shall this court adhere to the ruling in the Wann Case? The reasoning of that case, which was the first in which this court was called upon to construe the statute of 1855 (sections 5 and 6, p. 1521), was that the transmission of messages by electricity was so seriously affected by atmospheric causes, which were uncontrollable, that it would be ruinous to deny telegraph companies the right to limit their liability to any extent short of gross negligence. In other words, if that decision is to stand, it simply means that in this state telegraph companies are not liable for negligence, because all their messages are sent subject to this same stipulation, exempting them from all liability for the negligence of their servants in transmitting messages. Ought such a precedent to be longer followed? Is it not contrary to a sound public policy, which denies to common carriers and other agencies which conduct a public, as contradistinguished from a private, business, the right to stipulate against their own negligence? We unhesitatingly answer in the affirmative. Loth as we are to overrule a decision that has stood so long, we are convinced it cannot be longer maintained on principle. It was rendered when the system of telegraphic communication was yet in a crude state. The difficulties which then appeared to the courts to be so serious have largely vanished. The art of telegraphy in the 30 years that have since intervened has been reduced to comparative exactness; and when, as in this case, there is no evidence whatever of atmospheric disturbances or unfavorable conditions, it is very plain that an error by which "thirteen" is distorted into "nineteen" is caused either by careless operatives or imperfect and insufficient instruments and appliances. Since that decision was made, the relation of the telegraph to the commercial and social intercourse of the world has excited the most thorough and critical discussion; and, as might be expected, many contrary views have been expressed, and many conflicting adjudications rendered. It is because the reasons which induced the decision in the Wann Case do not, in our opinion, any longer obtain, that we are constrained to review that decision. It cannot be maintained that the same degree of responsibility should attach to persons or corporations engaged in transmitting intelligence by a system which was as yet crude, their operators untrained, and its appliances only experimental, and by a system which, after 50 years of experience, with all the adventitious aids of modern science, has been perfected in all its parts both as to suitable instruments and the opportunity afforded to employ expert and experienced operators. While it was anticipated that this new method of communication would revolutionize old methods, no one 30 years ago could have predicted how essential and indispensable the telegraph would become to the commercial and social interests of the whole world. It occupies a unique and peculiar place, and all analogies to former agencies fail when we come to apply...