Aiken v. Western Union Telegraph Co.
| Decision Date | 02 October 1874 |
| Citation | 5 S.C. 358 |
| Parties | AIKEN v. TELEGRAPH COMPANY. |
| Court | South Carolina Supreme Court |
Where a telegraph operator made a mistake in transcribing a message received at his office and delivered the next day, his admission of the error, made several days afterwards, is not evidence against the company-it being no part of the res gestae.
There is sufficient privity of contract between the receiver of a message by telegraph and the company to enable the former to maintain an action against the latter for negligence although the price of transmission was paid by the sender.
Express stipulations in the contract for transmission bind the receiver as well as the sender.
The analogy between common carriers of goods and common carriers of messages is not perfect, and their responsibility differs in a manner corresponding to the difference in the nature of the services they perform.
A contract by a telegraph company, made in pursuance of a regulation in reference to messages sent " during the night, at one-half the usual rates," contained a " condition that the company shall not be liable for errors or delays in the transmission or delivery, or for the non-delivery of such message, from whatever cause occurring and shall only be bound in such cases to return the amount paid by the sender. No claim for refunding will be allowed unless presented in writing within twenty days:" Held , That the regulation was reasonable, and the condition binding upon the receiver of the message.
The condition was not intended, it seems, to exempt the company from liability in case of negligence, nor in such case to limit the liability to the sum paid for transmission.
In such a case it is not error to refuse to instruct the jury that the company is not liable for an error in transmitting the message, unless it arose from fraud or gross negligence.
BEFORE MACKEY, J., AT FAIRFIELD, MAY TERM, 1873.
This was an action by James R. Aiken against the Western Union Telegraph Company, to recover damages sustained by reason of an error in the copy of a message as transcribed and delivered to the plaintiff by an agent of defendant.
The case, as stated in the brief, is as follows:
James R. Aiken, the plaintiff, was sworn as a witness on his own behalf, and testified-
Witness is a cotton buyer, and has dealt largely in cotton especially since the war. Winnsboro is a considerable cotton market. There is more cotton sold here than in Columbia. On the following day after its date, about a quarter past eleven o'clock, witness received from the operator of defendants, at Winnsboro, the following telegram, [with the heading printed in red ink]:
" No. 44.
" HALF-RATE MESSAGES.
" The Western Union Telegraph Company require that all messages received for transmission shall be written on the blanks of the company, under and subject to the conditions printed thereon, which conditions have been agreed to by the sender of the following HALF-RATE MESSAGE.
O. H. PALMER, Sec'y.
To James R. Aiken, Winnsboro, S. C.:
We are offered fifteen five-eighths one hundred low middling October or November.
" J. I. MIDDLETON & Co."
Witness at once telegraphed to J. I. Middleton & Co. that he would accept the offer. Witness ascertained, for the first time, on 19th October, by letter from J. I. Middleton & Co., that there was a mistake in the telegram; that it should have been fourteen five-eighths. Seven days after the receipt of the message, the operator at Winnsboro admitted to witness that it was his mistake, made in transcribing the message.
The counsel of defendants objected to the declarations of the operator as incompetent and inadmissible against the defendants, but the Court held the declarations admissible, and the defendants duly excepted.
Witness felt bound to fulfil the contract at fourteen and five-eighths, and purchased one hundred bales of cotton at fourteen and seven-eighths, to fulfil the contract. He shipped thirty bales the next day, and the balance afterwards. When the mistake was discovered it was too late to undo the contract. Middleton & Co. endeavored to do this, but could only get an extension of the time in which to fill the order. Middleton & Co., also considering the hardship of the case, charged no commissions. The loss sustained by witness amounted to three hundred dollars and eighty cents, being the difference between the net amount received under the contract for cotton sold, and the amount paid for cotton bought. If plaintiff had been obliged to fill the order according to the time, and paid commissions, his loss would have been seven hundred dollars.
Being cross-examined, witness testified as follows:
The telegram delivered to witness, of date 12th October, 1870, from J. I. Middleton & Co., was written on the company's blank, with the printed matter at the top, in red ink. Witness knew the telegraph company, by their regulations, exempted themselves from liability for mistakes in half-rate messages which were not repeated, but thought these regulations were not valid. At the time the mistake occurred in the telegram from Middleton & Co., witness was receiving telegrams every day from New York and Baltimore, giving the price of cotton. Witness kept well posted in the cotton market. At the time of receipt of despatch from Middleton & Co. witness thought fifteen and five-eighths (15 5/8 ) a fine price; thought fourteen and five-eighths too low; fifteen (15) would be about right. Low middlings were selling at Winnsboro, on 12th October, 1870, for more than fourteen and five-eighths. Witness made the contract with J. I. Middleton & Co. They made the offer for other parties-spinners. Witness did not know what their names were. Witness, being shown by defendants' counsel the following original despatch, with the printed matter at the top in red ink, said the signature of J. I. Middleton & Co. was genuine:
No claim for refunding will be allowed, unless presented in writing within twenty days.
O. H. PALMER, Secretary.
Figures in despatch crossed with pencil mark. Endorsed on despatch:
Witness demanded damages shortly after finding out mistake in telegram.
The plaintiff here rested, and the defendants' counsel moved for a non-suit, on the following grounds:
1. That there was no privity of contract between the plaintiff and the defendants, and nothing in the evidence to make the defendants liable to the plaintiff.
2. That the original message was written by J. I. Middleton & Co., the senders, upon a blank under a printed heading, which stated the terms upon which half-rate messages were received, to wit: " to be sent during the night at one-half the usual rates, on condition that the company shall not be liable for errors or delay in the transmission or delivery or for non-delivery of such messages, from whatever cause occurring, and shall only be bound, in such case, to return the amount paid by the sender," which terms were agreed to by said J. I. Middleton & Co.
3. That the plaintiff had due notice in the printed heading on the blank upon which the message delivered to him was written, that said message was sent as a half-rate message, was written on a blank of the company, under and subject to the conditions printed thereon, and that said conditions had been agreed to by the sender; and plaintiff, in his testimony, admitted his knowledge of the regulations of the company.
4. That the essential element to constitute a valid contract, to wit, the union of the minds of the contracting parties upon one and the same proposition, was wanting in this case.
5. That if any valid contract, binding upon the plaintiff, was made, it was the sale of one hundred bales of cotton to J. I. Middleton & Co. at fifteen and five-eighths (15 5/8 ).
6. That plaintiff, being a large cotton buyer, posted as to the New York and Baltimore market, by daily telegrams, in at once acting upon the receipt of a half-rate message, which contained a mistake of one cent per pound in the price offered for one hundred bales of cotton, did not manifest the care and prudence which an ordinarily prudent and intelligent business man should exercise, and was guilty of such negligence as bars a recovery in this case.
[The Court denied the motion on all the grounds, and the defendants excepted.]
The defendants then called S. K. McDonald as a witness, who testified:
Witness is the operator of the Western Union Telegraph Company in Winnsboro, and was at the time the telegram, of date 12th October, 1870, from J. I. Middleton & Co., to the plaintiff was received. It was received and transcribed in the night. Four despatches were received that night. Witness received the despatches with an instrument called " The Register," which makes the characters with a small pen or needle. Witness does not recollect whether the impression, when he mistook fourteen for fifteen, was distinct or not. ...
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