Carland v. Western Union Tel. Co.

• Decision Date: 18 October 1898
• Citation: 118 Mich. 369,76 N.W. 762
• Court: Michigan Supreme Court
• Parties: CARLAND v. WESTERN UNION TEL. CO.

76 N.W. 762

118 Mich. 369

CARLAND v. WESTERN UNION TEL. CO.

Supreme Court of Michigan

October 18, 1898

Error to circuit court, Shiawassee county; Stearns F. Smith, Judge.

Action by John E. Carland against the Western Union Telegraph Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

John T. McCurdy, for appellant.

Watson & Chapman, for appellee.

HOOKER J.

The plaintiff's action was brought to recover damages from the defendant for its failure to promptly transmit and deliver a telegram, whereby the plaintiff is said to have suffered a loss. The record contains testimony tending to show that the plaintiff, a merchant, residing at Corunna called the office of the defendant at that place by telephone. Mr. Young, defendant's agent, responded whereupon the plaintiff asked him to take a message, which he did. The message was as follows, viz.: "Corunna, Mich Jan. 25, 1898. To G. W. Wylie Company, 145 Van Buren Street Chicago, Ill. Buy three May. John E. Carland." It was intended to be understood to mean, "Buy three thousand bushels of May wheat." After waiting 24 hours without response to his message, the plaintiff called the defendant's office by telephone, and was answered by Mr. Reed, Young's assistant, who, in response to his inquiry, assured him that the message was sent. Twenty-four hours later the plaintiff called upon Young, who said he would trace the message, and he reported later that the message was never received at the Chicago office, and a duplicate of the message was sent on January 28th. The testimony tended to prove further that the price of wheat advanced meantime, and plaintiff's agent was obliged to pay a higher price than would have been necessary had the first message been sent promptly. A verdict was rendered in favor of the plaintiff, and the defendant has brought the case to this court by writ of error.

The action was commenced before a justice of the peace. The docket shows that:

"Plaintiff declared orally on all matters provable under the common counts in assumpsit, and especially on a contract with said defendant, and files a written memorandum of said contract, and claims damages three hundred dollars or under.

"Written Memoranda of Plaintiff's Declaration Herein: Plaintiff says that heretofore, to wit, on the 25th day of January, A. D. 1898, said defendant was, and still is, a telegraph company and corporation engaged in the telegraph business, and were common carriers of telegraph messages. And on, to wit, the 25th day of January, 1898, said defendant undertook, for a valuable consideration, to wit, 40 cents, to convey and deliver for said plaintiff a telegraph message to G. W. Wylie & Co., No. 145 Van Buren street, Chicago, Ill., which message was as follows: 'Corunna, Mich., Jan. 25th, 1898. To G. W. Wylie & Co., 145 Van Buren Street, Chicago, Ill.: Buy three May. J. E. Carland,'-which message instructed G. W. Wylie to purchase for said plaintiff three thousand bushels of wheat, to be delivered to said plaintiff on May first. And said defendant, by its contract with said plaintiff, owed said plaintiff a duty to deliver said telegram promptly, and without unnecessary delay. But, notwithstanding such contract and duty, said defendant wholly failed to deliver said telegram in any manner, and wholly failed and neglected so to do, and on account of such failure and neglect of said defendant said plaintiff was deprived of and lost large gain and profits on said wheat which the said George W. Wylie would have purchased for this plaintiff, and said plaintiff was deprived of the opportunity of purchasing said wheat on said 25th day of January 1898, and on account of which said plaintiff has been damaged in the sum of three hundred dollars, for the recovery of which this suit is brought. J. E. Carland." Several assignments of error relate to the declaration, it being claimed that it does not state a cause of action; that there is a misjoinder of counts; that the ad damnum clause, being $300, was fatal to the jurisdiction of the justice; and that, if none of these points are valid, the court should have compelled an election of counts.

It is manifest from the record that the plaintiff did not recover upon the common counts, and that there being nothing in the case that tended to support them they were practically abandoned, and an election would have been an empty form. The special count appears to have been intended as a count in assumpsit for the breach of a contract, and not a count in case for a negligent injury in the nature of a tort. See Tiff. Justice Guide, 183. It follows that, being a count in assumpsit, it was properly joined with the common accounts, as "all causes of actions enforceable in assumpsit may be joined." 1 Enc. Pl. & Prac. 169. But it is contended that there can be no recovery in assumpsit in such cases, and that the action must be case for a breach of duty, and not assumpsit for breach of contract. Counsel say that the "gist of these actions is negligence," quoting the language of Mr. Justice Grant in Birkett v. Telegraph Co., 103 Mich. 367, 61 N.W. 645. We think counsel has misinterpreted this language, and that there is nothing in that case which compels one having contract relations with a telegraph company to forego an action of assumpsit upon breach of the contract, and resort to an action ex delicto. It was true that negligence was the gist of that action, because the conditions which were made a part of the contract made it essential to recovery. In this case the plaintiff's claim is that the usual conditions are not a part of the contract. "Where the sender can show that through negligence of the company in transmitting or delivering a message he has suffered a legal injury, there can be no question as to his right to sue for damages; and this whether the right of action be regarded as resting in contract or in tort for the breach of public duty." Gray, Telegraphs, � 64; L. R. 4 Q. B. 706; 10 Best & S. 759; 25 Am. & Eng. Enc. Law, 824. Again: "The action is properly one ex contractu, and based on the contract of sending." 25 Am. & Eng. Enc. Law, 830. In the case of Telegraph Co. v. Carew, 15 Mich. 525, cited by counsel, the action was assumpsit, and, though the case was reversed, the court seems to have recognized the propriety of the form of action by ordering a new trial. There may be cases where an action upon contract would not be appropriate, as where the plaintiff was not a party to the contract. In actions brought by a person to whom the message is addressed, some of the courts so hold. This is so in England, where the rule is strictly enforced, but in this country there is a want of harmony upon the subject. See 25 Am. & Eng. Enc. Law, 824.

This also disposes of the jurisdictional question, as the statute (2 How. Ann. St. � 6814) confers concurrent jurisdiction upon justices of the peace in all civil actions upon contract where the debt or damages do not exceed $300. The declaration was entitled to the liberal treatment which the courts accord to pleadings in justice court, and sufficiently set forth the alleged contract, and its breach, to apprise the defendant of the plaintiff's claim. This also disposes of the objection made to the introduction of the depositions.

A number of questions relate to the alleged contract. It is contended that the contract to send the message was subject to the conditions which the defendant usually imposes upon its patrons; that Young was, by the plaintiff, made his agent to write the telegram upon the blank containing the conditions; and that receiving a message upon any other terms than such conditions would be outside of the scope of Young's authority. Young, being the person in charge of the defendant's business, and authorized to receive telegrams, was acting within the...