Cumberland Tel. Co. v. Brown

• Decision Date: 20 January 1900
• Citation: 55 S.W. 155
• Parties: CUMBERLAND TEL. CO. v. BROWN.
• Court: Tennessee Supreme Court

55 S.W. 155

CUMBERLAND TEL. CO. v. BROWN.

Supreme Court of Tennessee.

January 20, 1900.

Error to circuit court, Davidson county; J. W. Bonner, Judge.

Action by J. T. Brown against the Cumberland Telephone Company. Judgment for plaintiff. Defendant brings error. Reversed.

Vertrees & Vertrees and Hill McAlister, for plaintiff in error. Douglas Wikle and Firman Smith, for defendant in error.

CALDWELL, J.

The Cumberland Telephone Company appeals in error from a judgment for $500 recovered against it by J. T. Brown for negligent delay in the delivery of a message. Brown was a resident of the city of Nashville, but was temporarily at Hickman, a small village about 58 miles from Nashville, and 2 miles beyond Gordonsville. The telephone company had an office at Nashville, and one at Gordonsville, but none at Hickman. In the afternoon of September 16, 1897, Brown's son went into the office at Nashville, and stated to the operator there that he had an important message for his father, at Hickman. The operator called the company's agent at Gordonsville, and put the son in communication with him. The son, availing himself of the instrument and connection thus afforded, communicated his message to the Gordonsville agent, who agreed to deliver it at Hickman; and thereupon, according to the usual custom, the Nashville agent demanded and received 65 cents in payment of total charges, being 25 cents for the transmission of the message to Gordonsville, and 40 cents for its delivery at Hickman. The message, as written by the agent at Gordonsville, was as follows: "Nashville, Tennessee, 9/16/97. Mr. J. Thomas Brown, Hickman, Tennessee: Come home immediately. Your daughter is dangerously ill. [Signed] Tom Brown." Though received at Gordonsville at 5:15 p. m. of that day, and so marked on its face, the message was not delivered until about 8 or 8:30 a. m. the next day, which was near 15 hours after the agent got it, and some five hours after the sendee's daughter's death, of which he learned 30 minutes later through another message transmitted over the same line, and likewise delivered at Hickman. The company virtually concedes the foregoing facts, but, nevertheless, denies its liability in this case, upon the ground that it had instructed its operator not to receive messages from any one, to be by any agent of the company delivered to the sendee, and that the undertaking of the Gordonsville operator to deliver this message at Hickman was therefore without authority, and not binding on his principal. It was in relation to this phase of the case that the trial judge gave the charge against which the first assignment of error in this court is directed. That charge is in this language, namely: "In the opinion of the court, this instruction to employés is of little consequence, under the conceded facts of this case. If the company knowingly permitted its employés, over its own wires, to make such arrangements with customers, ascertained from such employés the cost of delivery beyond the terminus of the line, and there collected from the customer compensation for the entire work, then the fact that, under its arrangement with its distant operators, they were to receive the pay for the delivery beyond the terminus, could make no difference, so far as the customer was concerned; and the negligence of such operator, if proven, would be the negligence of the company...