Birkett v. Western Union Telegraph Co.

• Decision Date: 28 December 1894
• Citation: 61 N.W. 645,103 Mich. 361
• Court: Michigan Supreme Court
• Parties: BIRKETT v. WESTERN UNION TEL. CO.

61 N.W. 645

103 Mich. 361

BIRKETT v. WESTERN UNION TEL. CO.

Supreme Court of Michigan

December 28, 1894

Error to circuit court, Wayne county; Henry N. Brevoort, Judge.

Action by James T. Birkett against the Western Union Telegraph Company for delay in delivering a telegram. Judgment for plaintiff, and defendant brings error. Reversed.

C. A. Kent, for appellant.

David W. Brooks (Otto Kirchner, of counsel), for appellee.

GRANT J.

Defendant had a telegraph office at Hand station, on the Wabash Railroad, twelve miles from Detroit, and also at Dearborn, on the Michigan Central. The distance between them is between three and four miles. At both places the office is one with that of the railway companies, and the operators are those employed by these companies. Defendant has an arrangement with the companies, by which their operators at these stations do all its business. It has no contract with the operators, and no control over them. The entire receipts of the defendant at Hand are about $2.50, and at Dearborn about $4, per month. The cost of a telegraph operator at either place would be about $40. Plaintiff resided at Hand station. His wife was taken sick on the morning of August 26, 1890 and a physician residing at Dearborn was summoned to attend her. She was suffering from a miscarriage. The flow of blood was stopped, and the physician left, with instructions to send for him if the hemorrhage returned. About 9 o'clock in the morning she became worse. At 10 o'clock plaintiff sent an unrepeated message to the physician at Dearborn, saying, "Come to my house quick." He also informed the operator of Mrs Birkett's illness, and of the necessity of haste. The message had to go by way of Detroit. It reached the latter place in due time, but the operator at Detroit could not get the operator at Dearborn, although he tried many times. The message should have been delivered in about half an hour, but was not delivered until about 2 o'clock p. m. The regular operator at Dearborn had been granted leave of absence, and his place temporarily supplied by another, who did not make the proper connection with the Detroit office of the defendant. This was the reason of the delay in sending the message. It is claimed by plaintiff that the health of his wife was seriously injured by the delay in the delivery of the message, and the consequent failure to obtain medical attendance and treatment, and also that he had been subjected thereby to expense in procuring medical attendance and medicines. For the alleged injury he recovered verdict and judgment of $2,500. The telegraph blank upon which the message was sent, and signed by the plaintiff, stated that it was taken by the company subject to the terms thereon printed. One of these terms reads as follows: "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 further provided that the company should not be liable for mistakes or delays in the transmission or delivery or the nondelivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same.

The first defense set up against this action is this condition which defendant insists was a part of the contract between it and the plaintiff, and is such a reasonable condition as the law authorizes it to make. It was settled in this state by the case of Telegraph Co. v. Carew, 15 Mich. 525 that telegraph companies, in the absence of any provision of the statute, are not common carriers, and that the regulation stated above is reasonable, and binding upon the senders of messages, whether they have knowledge of its contents or not. This has been accepted as the law in this state for 27 years. The telegram, as written, used the word "forty"; as delivered, the word "four." The legislature has not seen fit to change the liability of telegraph companies, as there established; and, whatever might be the views of any of us if it were a new question, we are not disposed to overrule that case, which received the sanction of the three eminent jurists who decided it. The reasoning of that decision is substantially the same as that found in the decisions of many other courts some of which are cited in the opinion. In addition to the cases there cited, we cite the following: Ellis v. Telegraph Co., 19 Allen, 226; Grinnell v. Telegraph Co., 113 Mass. 299; Kiley v. Telegraph Co., 109 N.Y. 231, 16 N.E. 75; Redpath v. Telegraph Co., 112 Mass. 71; Clement v. Telegraph Co., 137 Mass. 463; Telegraph Co. v. Hearne, 77 Tex. 83, 13 S.W. 970; Passmore v. Telegraph Co., 78 Pa. St. 238; Becker v. Telegraph Co., 11 Neb. 87, 7 N.W. 868; Wann v. Telegraph Co., 37 Mo. 472; Lassiter v. Telegraph Co., 89 N.C. 334; Telegraph Co. v. Gildersleve, 29 Md. 232; Hart v. Telegraph Co., 66 Cal. 579, 6 P. 637. In Ellis v. Telegraph Co., the dispatch, as sent, read, "Ten (10) men one hundred twenty-five dollars." As received, it read, "ten (10) men one hundred seventy- five (175) dollars." In Grinnell v. Telegraph Co., a material part of the message was omitted. In Kiley v. Telegraph Co., the message was never delivered. In Redpath v. Telegraph Co., the message was never delivered, but was sent to Oswego, instead of to Owego. In Clement v. Telegraph Co., the message was not delivered until five days after its receipt. In Telegraph Co. v. Hearne, the dispatch read: "Return note left by Hearne. Draw for $500." As delivered, it read: "Return note left by Hearne, order $500." The plaintiff in the court below recovered a verdict for $25,000. In Passmore v. Telegraph Co., the dispatch, as sent, read, "I hold the Tibbs tract for you." As received, it read, "I sold the Tibbs tract for you." In Becker v. Telegraph Co., the dispatch, as sent, read, "One fifty;" as received, "One sixty." In Wann v. Telegraph Co., the dispatch, as sent, read, "Ship by sail;" as received, "Ship by rail." A similar mistake occurred in Lassiter v. Telegraph Co., which case has, however, been recently overruled by Brown v. Cable Co. (N. C.) 16 S.E. 179. In Telegraph Co. v. Gildersleve, the dispatch was never delivered. In MacAndrew v. Telegraph Co., 17 C. B. 3, the message directed a vessel to proceed to Hull. The message, when delivered, read "Southampton." In the above cases this regulation was held reasonable, and the failure to order the message repeated a complete answer to the action. Several of the authorities above cited recognize the rule that any condition relieving telegraph companies from liability for gross negligence, willful misconduct, or fraud, is void, as against public policy. This rule is also recognized in the following authorities: White v. Telegraph Co., 5 McCrary, 103, 14 F. 710; Telegraph Co., v. Howell, 38 Kan. 685, 17 P. 313; Telegraph Co. v. Goodbar (Miss.) 7 South. 214.

The authorities are not uniform, and several authorities will be found in the contrary. The rule is criticised in Thompson on the Law of Electricity (chapter 8), where the authorities will be found collated. We do not deem it important to cite them here. Some of them recognize the right of telegraph companies to establish reasonable rules and regulations for the conduct of their business. Some also recognize these regulations as valid, but strip them of their force by holding that they do not apply to nor relieve a telegraph company in case of negligence. Speaking for myself I can see no object in the regulation, unless it be to relieve the company from certain negligent acts of their employ�s. If they be not common carriers,-and this is almost universally admitted,-then there is no liability, except in case of negligence. If delay in delivery, or failure to deliver, or mistake in the wording of messages, is attributable to storm, to accident, to sudden sickness of an operator or a messenger, or to any cause which does not of itself imply negligence, there can be no liability. What purpose, then, is there in, or what benefit is, such a regulation, if it still leaves open the question of negligence against them, where the sender does not choose to comply with the conditions to which he has agreed, and will, in all probability, insure the delivery of his message as written? In commenting upon this class of cases, which hold that the telegraphic companies cannot stipulate against any negligence on the part of their employ�s, the supreme court to California says: "But, as this latter class of cases concede that telegraph companies are not common carriers, their liability must rest on the ground of negligence or willful misconduct, which is fraud. Fraudulent conduct on the part of the company would, of course, vitiate such a stipulation; but to say that no stipulation can be made, limiting their liability for negligence, is to say, in effect, that no stipulation can be made, limiting their liability at all. It seems to us, therefore, that we must either hold, as did the courts in Illinois, Maine, and Wisconsin, that such stipulations are invalid because unsupported by a consideration, and contrary to public policy, or that it is competent for telegraph companies to stipulate for the limitation of their liability for errors arising from any cause except willful misconduct or gross negligence." Hart v. Telegraph Co. (Cal.) 6 Pac. 639. The court below and counsel appear to have recognized the rule as established in the Carew Case, for it was left to the jury to determine whether the defendant was guilty of gross negligence in the failure to deliver the message within the usual time. Such failure is certainly no more gross negligence than in the cases above cited where the message was not...