Clark v. Western Union Tel. Co.
| Decision Date | 06 January 1931 |
| Docket Number | No. 21179.,21179. |
| Citation | 33 S.W.2d 982 |
| Parties | GEORGE W. CLARK, RESPONDENT, v. THE WESTERN UNION TELEGRAPH COMPANY, A CORPORATION, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis — Hon. Chas. W. Rutledge, Judge.
REVERSED AND REMANDED.
Jones, Hocker, Sullivan & Angert for appellant.
Francis R. Stark of counsel.
(1) The telegram involved in this case being an interstate message, the liability of the defendant and the measure of damages to be assessed against it must be determined by the law as declared by the Federal courts. Jacobs v. Western Union Telegraph Co., 196 Mo. App. l.c. 305; Poor Grain Co. v. Western Union, 196 Mo. App. l.c. 561-562; Western Union v. Milling Co., 218 U.S. 406; Western Union v. Pendleton, 122 U.S. 347; Western Union v. Speight, 254 U.S. 17; Western Union v. Beach, 211 Pac. (Okla.) l.c. 1035-1036; Western Union v. Esteve Bros., 256 U.S. 566. (2) It is the rule established by both Federal and Missouri decisions that damages recovered for failure to deliver a telegram must be such as might reasonably be expected to result from such failure to deliver, or such as might reasonably be said to have been within the contemplation of both parties when the message was accepted, if the same should not be promptly delivered. The rule in Hadley v. Baxendale, 9 Exch. 345, applies to actions for damages for non-delivery of a message, whether the action therefor be considered in contract or in tort. Primrose v. Western Union, 154 U.S. l.c. 29-30; Western Union v. Coggin, 68 Fed. (8th Cir.) l.c. 139-140; Fererro v. Western Union, 9 App. Dec. 455, 35 L.R.A. 548; Western Union v. Hall, 124 U.S. 444; Melson v. Western Union, 72 Mo. App. l.c. 114-116; Hughes v. Western Union, 79 Mo. App. l.c. 137-138; Whitehill v. Western Union 136 Fed. l.c. 501-502; Kerr S.S. Co. v. Radio Corporation, 245 N.Y. 284, 157 N.E. 140. The damages sought to be recovered in excess of the price of the message are not recoverable because they were not the proximate result of the alleged delay. 37 Cyc. 1754; Western Union v. Hall, 124 U.S. 444; Primrose v. Western Union, 154 U.S. 1; Hughes v. Western Union, 79 Mo. App. 133; Jacobs v. Western Union, 196 Mo. App. 300; 26 R.C.L., p. 602. sec. 100. (3) The telegram involved in this case does not remotely suggest that the damages sought to be recovered might reasonably result in case of a failure to promptly deliver the message. Neither can it be reasonably said that such damages were in contemplation of the parties. Said message is in the class of messages usually referred to as "come at once" or "meet me" messages, and there is no liability for damages in this case beyond the price paid for the message. Melson v. Western Union, 72 Mo. App. 111; Fitch v. Western Union, 150 Mo. App. 149; Western Union v. Coggin, 68 Fed. 137; Bowers v. Western Union. 47 S.E. (N.C.) 597; Western Union v. Clifton, 8 So. (Miss.) 746; Jones v. Western Union, 50 S.E. (S.C.) 198; Hildreth v. Western Union, 47 So. (Fla.) 820; Kolliner v. Western Union, 147 N.W. (Minn.) 961; Sledge v. Western Union, 50 So. (Ala.) 886; King v. Western Union, 105 Pac. (Kan.) 449: Christman v. Postal Telegraph-Cable Co., 74 S.E. (N.C.) 324; Faulkner v. Western Union, 13 S.W. (2d) (Mo. App.) l.c. 1090-1091. (4) The court erred in admitting evidence as to the plaintiff's damages in connection with the Arkansas contract and the proposed movement of the dredge machinery from Rolling Fork, Mississippi, to Newport, Arkansas, and in failing to give Defendant's Instruction No. III limiting the amount of plaintiff's damages to the price paid for sending the message. (Authorities, Points 2 and 3, supra.) (5) The trial court erroneously admitted the evidence as to the knowledge of Hazelwood, the agent of the Postal Telegraph-Cable Company at Rolling Fork, Mississippi, for the purpose of showing extrinsic knowledge of plaintiff's purpose in sending the telegram, and in refusing Defendant's Instruction No. I because the agent of the Postal Telegraph-Cable Company was not the agent of the Western Union Telegraph Company, and notice to said agent at Rolling Fork, Mississippi, was not notice to the defendant in this case. Baldwin v. United States Tel. Co., 45 N.Y. 744, 6 Am. Rep. 165; L. & N.R. Co. v. Chatters, 279 U.S. 320; Basila v. Western Union, 24 F. (2d) 569; 26 R.C.L., pp. 558-559, sec. 63. Even if Hazelwood had been the agent of the defendant company, there would have been no liability for failure to communicate his knowledge to the other agents of the company in Mississippi and Arkansas. Western Union v. Hall, 287 Fed. l.c. 303-304; Faulkner v. Western Union, 13 S.W. (2d) (Mo. App.) 1088; Western Union v. Woniski, 84 Ark. 457, 106 S.W. 486; Western Union v. Merritt, 55 Fla. 462, 46 So. 1024; Utica Sanitary Milk Co. v. Casualty Co., 210 N.Y. 399; Wiggs v. Telegraph Co., 110 S.W. (Tex. App.) 179; Pope v. Western Union, 14 Ill. App. 531. (6) The defendant had a right to have its theory of the case submitted by instructions on the case, and the court erred in refusing Defendant's Instructions II and IV. Miller v. Kansas City Rys. Co., 247 S.W. (Mo. App.) 230; Jennings v. Cooper, 230 S.W. (Mo. App.) l.c. 328; Smith v. Southern, 210 Mo. App. l.c. 292; Maeshall v. Brown, 230 S.W. (Mo. App.) l.c. 348. The evidence shows reasonable diligence on the part of the defendant to deliver the message to the addressee, unless the testimony of Kennett Clark as to calls for the telegram be true. Moore v. Western Union, 164 Mo. App. 165; Downs v. Horton, 287 Mo. l.c. 430-431; Wilkinson v. Western Union, 206 Mo. App. l.c. 392.
Louis J. Portner for respondent.
(1) It is well-settled law under Missouri and federal decisions that the sender or sendee of a telegram in a tort action against a telegraph company for failure to deliver a message promptly, can recover for the damages that are the natural and proximate result of defendant's breach of a public duty. Lynch v. Western Union Telegraph Company, 18 S.W. (2d) 535-538; Faulkner v. Western Union Telegraph Company, 13 S.W. (2d) 1088-1090; Lutesville Sand & Gravel Company v. Western Union Telegraph Company, 296 S.W. 252-254; Barnett v. Western Union Telegraph Company, 287 S.W. 1064-1068; Jacobs v. Western Union Telegraph Company, 196 Mo. App. 300-303; Tippin v. Western Union Telegraph Company, 194 Mo. App. 80-87; Western Union Telegraph Company v. Cowin & Company, 20 Fed. (2d) 103-107; Western Union Telegraph Company v. Lawson, 182 Fed. 369. (a) This rule also prevails in the case of interstate messages. Faulkner v. Western Union Telegraph Company, supra; Barnett v. Western Union Telegraph Company, supra; Jacobs v. Western Union Telegraph Company, supra. (b) This rule is applicable to cases involving messages of the character in the case at bar. It was a message from the owner of a business to an employee, it was sent in care of the sender's business firm and contained an urgent request. Jacobs v. Western Union Telegraph Company, 196 Mo. App. 300-303; Kerns & Lorton v. Western Union Telegraph Company, 174 Mo. App. 435-440. It was also sent under circumstances which charge the defendant with notice of its importance. Faulkner v. Western Union Telegraph Company, 13 S.W. (2d) 1088-1090; Fitch v. Western Union Telegraph Company, 150 Mo. App. 149-161. (2) The evidence concerning the receiving Postal Telegraph agent at Rolling Fork, Mississippi, for the purpose of showing extrinsic knowledge of the importance of the telegram to plaintiff was properly admitted for the following reasons: 1. There are no Federal or Missouri cases which directly decide this issue. Accordingly, the rules governing the agency of a common carrier for a connecting carrier should prevail. Jones on Telegraph & Telephone (2 Ed.), 477; 26 Ruling Case Law, 558, 2. It has long been the established rule in Missouri that there is a privity between the initial carrier and a connecting railroad so as to make the initial carrier the agent of the connecting carrier for the purpose of making a contract. Halliday v. The Railroad, 74 Mo. 159; Pabst Brewing Company v. Railway, 273 S.W. 424-427. (3) Defendant's instruction II was properly refused, because it was, in effect, a peremptory instruction and direction to find for the defendant, and for the further reason that it singled out defendant's evidence and did not include the plaintiff's testimony. Spohn v. Railway, 87 Mo. 74. (4) The court properly refused defendant's instruction IV, for the reason that it amounted to a comment upon the evidence and for the further reason that the issue therein presented was properly presented to the jury under plaintiff's instruction I. Crowley v. Railway Company, 18 S.W. (2d) 541-543.
This is an action to recover for damages alleged to have been sustained by the plaintiff because of the failure of the defendant to promptly and properly deliver a telegram sent by the plaintiff from Rolling Fork, Mississippi, on December 12, 1925, to L.W. Salway, at Newport, Arkansas. The amount of damages claimed is $500. The message sent, omitting date and signature, is as follows: "Get down here and not later than Tuesday night O.K."
After trial in a justice court, the case was appealed to the circuit court, where a trial was had before the court and a jury. There was a verdict and judgment in favor of plaintiff for the sum of $500, and defendant has appealed.
The evidence discloses that plaintiff, George W. Clark, lived in the city of St. Louis, and is a drainage contractor, doing business under the name of George W. Clark Construction Company, in which business he had been engaged for many years. He had a contract to do certain work near Newport, Arkansas, and the machinery with which he was to do the work was at Rolling Fork, or near Rolling Fork, Mississippi. He had communicated with some parties at Rolling Fork to advise him as to the condition of the roads and the river so that he might be...
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