Czizek v. Western Union Telegraph Co.

• Decision Date: 04 April 1921
• Docket Number: 3543.
• Citation: 272 F. 223
• Parties: CZIZEK v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. Court of Appeals — Ninth Circuit

272 F. 223

CZIZEK v. WESTERN UNION TELEGRAPH CO.

No. 3543.

United States Court of Appeals, Ninth Circuit.

April 4, 1921

Richard H. Johnson, of Boise, Idaho, for plaintiff in error.

Beverly L. Hodghead, of San Francisco, Cal., and Richards & Haga, of Boise, Idaho (Francis R. Stark, of New York City, of counsel), for defendant in error.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

HUNT Circuit Judge.

Action instituted in the state court for damages because of failure to forward and deliver a telegram dated at Boise, Idaho November 30, 1917, addressed to J. A. Czizek, 5767 Shafter avenue, Oakland, Cal., and reading as follows:

'Miller advises Idaho National sold to Pacific offers me ninety dollars per share otherwise wait year and chances of liquidation says if fails to get two thirds stock liquidation will follow. Will you take ninety dollars per share for yours I am inclined to accept offer for mine. Answer, T. J. Jones.' On petition of the telegraph company the case was removed to the federal court, and after trial judgment was rendered in favor of the telegraph company.

We must first notice a question of jurisdiction presented by plaintiff in error, and a motion to strike the bill of exceptions presented by defendant in error. Removal from the state court to the United States court in the district of Idaho was on the ground that Czizek was a citizen of Idaho and the defendant a New York corporation. Czizek moved to remand to the state court on the ground that he was a citizen and resident of California. In support of his motion affidavits were filed, and defendant filed counter affidavits. On October 10, 1919, the court denied the motions. Exception was allowed, but no bill of exceptions covering the ruling was prepared or settled during the term of court at which the ruling was made, nor was any order granted for an extension of the time in which to prepare a bill of exceptions.

The telegraph company by answer denied the allegations of the complaint in part, but admitted the presentation of the message by Jones to the telegraph company, receipt and acceptance by the company, and payment of the regular charges. It also admitted that Czizek and Jones were told at the office of the telegraph company in Boise that the message never had been sent. Other defenses are based upon the following conditions printed on the back of the telegraph blank:

'To guard against mistakes or delays, the sender of a telegram should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one-half the unrepeated telegram rate is charged in addition. Unless otherwise indicated on its face, this is an unrepeated telegram and paid for as such, in consideration whereof it is agreed between the sender of the telegram and this company as follows:

'1. The company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated telegram, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for nondelivery, of any repeated telegram, beyond fifty times the sum received for sending the same, unless specially valued; nor in any case for delays arising from unavoidable interruption in the working of its lines; nor for errors in cipher or obscure telegrams.

'2. In any event the company shall not be liable for damages for any mistakes or delays in the transmission or delivery, or for the nondelivery, of this telegram, whether caused by the negligence of its servants or otherwise, beyond the sum of fifty dollars, at which amount this telegram is hereby valued, unless a greater value is stated in writing hereon at the time the telegram is offered to the company for transmission, and an additional sum paid or agreed to be paid, based on such value equal to one-tenth of one per cent. thereof. * * *

'6. The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the telegram is filed with the company for transmission.'

Defendants also pleaded that the message was interstate, subject to the rules of the Interstate Commerce Commission.

On June 5, 1920, plaintiff petitioned for a new trial, and on June 17, 1920, the court overruled the motion and granted plaintiff until July 8, 1920, within which to file and serve a proposed bill of exceptions to the rulings, findings, and decision of the court. The bill of exceptions contains all the evidence and was filed and served on July 2, 1920. Defendant moved the District Court to strike the proposed bill of exceptions from the file. The court denied the motion to strike the entire bill, but struck out the part which related to the motion to remand, for the reason that a 'bill of exceptions was not prepared and served within the 10 days allowed by the rules after the order denying the motion was made, or during the term of court at which the order denying the motion to remand was made. ' Exception was saved, and the bill of exceptions was settled July 16, 1920.

The time for preparing a bill of exceptions to the ruling on the motion to remand expired October 20, 1919, and the term at which such ruling was made expired on February 7, 1920; but as to the other matters the extensions granted were during the term of the court at which trial was had, and the time for preparing bills of exceptions did not expire until July 8th. Under the circumstances, after the court decided the issue of fact as to residence, it was right in retaining jurisdiction and in striking the portion pertaining to the motion to remand. Anderson v. United States, 269 F. 65. The court also had authority to deny the motion to strike the other portions of the bill of exceptions as presented, although they were not prepared and submitted as required by the rules of the court. Hunnicutt v. Peyton, 102 U.S. 333, 26 L.Ed. 113; Russo-Chinese Bank v. National Bank of Commerce, 187 F. 80, 109 C.C.A. 398.

The main issues of the case are therefore properly for consideration. The facts are:

Plaintiff owned 50 shares of stock in the Idaho National Bank, worth on their face $5,000. T. J. Jones owned 15 shares of the same stock. Miller, a stockholder, wished to buy plaintiff's stock in order to effect a merger of two banks. Plaintiff told Miller that he wished to sell, but no agreement was reached. Plaintiff said he was going away, but on his return would be ready to negotiate. Plaintiff told Jones what Miller said, and authorized Jones to negotiate with Miller for him. Miller then went to California, and never received the telegram. On December 1st Jones' son inquired at the telegraph office if a message had come for his father, and was told there was none. Mr. Jones, Jr., asked the attendant to see if the telegram had been sent. She looked through some files and said it had been sent. On the next day, Jones, Jr., asked again if the message had been sent, and was told by the attendant that Czizek had received the telegram. Czizek testified that, if he had received the telegram, he would have telegraphed acceptance of $90 per share. Jones sold his own 15 shares at $90 and received the money therefor.

Meanwhile the Idaho National Bank went into liquidation and the stock became valueless and remained so. About February 14, 1918 Czizek returned to Boise and learned that the message to him from Jones had been given to the telegraph company on November 30th to forward. Czizek and Jones at once called upon the local manager of the company, who promised investigation. On February 14, 1918, the manager in Boise wrote that the message had failed in transmission, and inclosed a check for the amount paid as toll. On February 18th Jones returned the check, writing that acceptance might be construed as settlement. The general manager at Boise then went to see Jones and spoke of settlement, upon the basis of the value of the stock and the amount Miller offered. On June 18th plaintiff made formal demand. On June 19th the manager wrote that the letter had been forwarded to the company for consideration, and inquiring as to the value of the stock. Thereafter Czizek received a letter from the district superintendent of the telegraph company, dated July 2, 1918, at Salt Lake, acknowledging claim for...