Des Arc Oil Mill v. Western Union Telegraph Co.

• Decision Date: 28 January 1918
• Docket Number: 108,209
• Citation: 201 S.W. 273,132 Ark. 335
• Parties: DES ARC OIL MILL v. WESTERN UNION TELEGRAPH COMPANY
• Court: Arkansas Supreme Court

201 S.W. 273

132 Ark. 335

DES ARC OIL MILL v. WESTERN UNION TELEGRAPH COMPANY

No. 108, 209

Supreme Court of Arkansas

January 28, 1918

Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks Judge; reversed.

Reversed and remanded.

Richard M. Mann, for appellant.

1. The appellee is liable on the first cause of action for its negligence. It introduced no testimony whatever, nor did it introduce any provision limiting its liability, nor any testimony that it had filed with the Interstate Commerce Commission any rules or regulations limiting its liability. This was an essential showing as a defense. 223 U.S. 573; 191 S.W. 817. If a provision limiting liability had been shown it was not valid nor binding. 38 U.S. Stat. L. 1196, Fed. Stat Ann. Suppl. 1916, p. 124; 196 S.W. 516; 191 Id. 817.

2. It was liable for negligently and falsely assuring appellant that the message was correctly delivered, on which assurance appellant relied to its damage. 103 Ark. 79; 25 Id 219; 37 Id. 47; 29 Id. 512; 16 Cyc. 1003; 25 Id. 425, note 526; 111 N.W. 1; 8 L. R. A. (N. S.) 485; 50 L. R. A. 160; 75 Ark. 596; 17 F. 495; 117 Iowa 180; 90 N.W. 616; 62 L. R. A. 617.

3. The telegraph company was the agent of the sender and bound to correctly transmit the message. 9 Cyc. 294. See also 153 N.W. 375; 84 Ark. 457; 92 Id. 133; 73 Id. 205; 89 Id. 368.

Albert T. Benedict and Rose, Hemingway, Cantrell, Loughborough & Miles, for appellee.

1. The instruction is sustained by the conditions of the telegram. 154 U.S. 1.

2. The conditions limiting liability are authorized by the Interstate Commerce Act. 36 Stat. L. 539; 231 F. 405; 165 P. 1175; 89 S.E. 106; L. R. A. 1915 B. 685; 203 F. 140.

3. If plaintiff sustained a loss, it alone was to blame. 1 Sedgwick on Dam., § 201 et seq.; 57 Ark. 257; 264; 73 Id. 205; 118 Id. 113; 62 S.W. 119; 86 S.E. 631; 141 P. 585; 160 S.W. 991; 141 P. 586.

4. There was no later contract between the parties. 154 W. S. 128. The conditions were part of the contract and put plaintiff on notice. Plaintiff could have sold without loss. The undertaking of the agents of defendant was wholly without consideration. The company is a public servant and required to conduct its business under the rules of the Interstate Commerce Commission and no discrimination nor guarantee could be allowed.

McCULLOCH, C. J. SMITH, J., dissenting.

OPINION

McCULLOCH, C. J.

This is an action instituted by appellant against appellee telegraph company to recover damages for alleged negligence of appellee's servants in failing to correctly transmit and deliver a telegraphic message. Appellee did not introduce any testimony concerning the transaction and appellant's testimony is undisputed. The trial court decided that no liability on the part of the telegraph company was shown and gave a peremptory instruction to the jury to return a verdict in appellee's favor.

Appellant operated an oil mill in Arkansas and maintained an office in the city of Little Rock. On October 27, 1916, appellant held an option from another mill concern at Searcy, Arkansas, for the purchase of 1,000 tons of cotton seed, and on that day sent a code message by telegraph to the East St. Louis Cotton Oil Company of East St. Louis, Illinois, offering to sell 850 tons of seed at the price of $ 64.00 per ton, the word "completingly" being used in the code to indicate those figures. In the transmission of the message the word "completely" was used by the operator, which, according to the interpretation of the code, indicated the price of $ 63.00 per ton for the seed, and the message was delivered to the sendee in that form. Immediately upon the receipt of the message the manager of the East St. Louis mill called up appellant's agents at Little Rock by telephone and accepted the offer without either of the parties restating the price, appellant's agent understanding at the time that his message had been correctly transmitted indicating the price of $ 64.00 per ton, and the manager of the other concern supposing at the time that he received the message correctly and that the price was $ 63.00 per ton as indicated by the code word used in the message. There was a custom among dealers in the commodity mentioned to confirm trades made over the telephone, by telegram or letter, and so, within an hour after the telephone conversation, the manager of the East St. Louis mill sent to appellant's manager a telegram confirming the acceptance of the order at $ 63.00 per ton. As soon as appellant's manager observed this discrepancy between the offer and that contained in the acceptance he instituted an inquiry with the telegraph company and after due investigation by the operator the manager reported to appellant's manager that the message had been correctly transmitted and delivered as written. Resting upon this assurance appellant's manager insisted upon the purchaser taking the seed at the price contained in the offer, but when he ascertained finally that the message had been incorrectly transmitted and that in the form delivered to the purchaser the price was indicated at $ 63.00 per ton he yielded to the contention of the purchaser and delivered the seed at that price. The difference of $ 1.00 per ton is claimed as damages resulting from the incorrect transmission of the message. Cotton seed was worth in the market the full price stated in appellant's offer for several days after the offer was made, but subsequently declined in price. Immediately after the telephone message between appellant's manager and the East St. Louis purchaser appellant closed the option with the Searcy mill for the purchase of 1,000 tons of seed. The evidence shows that, although the telegraphic message sent by appellant was in code language and unintelligible to those who were not familiar with the code, appellant's manager informed the operator of the contents and importance of the message.

(1-3) The first contention of learned counsel for appellee in support of the court's peremptory charge to the jury is that the damage to appellant was avoidable in that its manager was apprised of a mistake in the transmission of the message in time to have sold the cotton seed at the full price named therein and appellant should have broken its contract with the purchaser and sold the seed for the best obtainable price which was sufficient to cover the damages resulting from the breach of the contract. This reasoning is, we think, entirely unsound. While we have announced the rule in this class of cases that it is the duty of one suffering damage by reason of the negligence of a telegraph company to adopt every available method of minimizing the damage (Western Union Tel. Co. v. Crain, 118 Ark. 13, 175 S.W. 393), yet this rule does not require a party to break his own contract in order to protect the telegraph company from the consequences of the negligence of its own servants. The rule stated does not go that far. It is conceded that the servants of the telegraph company were guilty of negligence and that as a result of that negligence a valid contract was imposed on appellant to sell the seed at a lower price than was proposed in the message as written and delivered to the agent of the telegraph company for transmission. The authorities announce the rule that "a party making an offer by telegraph is responsible for the correct transmission of his message and is bound by it in the terms in which it is delivered to the party addressed." This is on the theory that the carrier of the message is the agent of the sender. 9 Cyc., p. 294; Ayer v. Telegraph Co., 79 Me. 493, 10 A. 495; West. Union Telegraph Co. v. Shotter, 71 Ga. 760; Durkee v. Vermont Central Rd. Co., 29 Vt. 127; Saveland v. Green, 40 Wis. 431; New York & W. P. Telegraph Co. v. Dryburg, 35 Pa. 298; Sherrerd v. Telegraph Co., 146 Wis. 197, 131 N.W. 341; Younger v. Telegraph Co., 146 Iowa 499; Eureka Cotton Mills v. Telegraph Co., 88 S.C. 498, 70 S.E. 1040. There are decisions to the contrary. McKee v. Telegraph Co., 158 Ky. 143, 51 L. R. A. (N. S.) 439, 164 S.W. 348; Shingleur v. Telegraph Co., 72 Miss. 1030, 18 So. 425; Pepper v. Telegraph Co., 87 Tenn. 554, 11 S.W. 783. The true rule is, we think, that announced in the majority of the cases that as between the sender and sendee the telegraph company is the agent of the former who is bound by any mistake made in transmission of a message, though the sendee may, under proper circumstances, maintain an action against the telegraph company for damages resulting in violation of the public duty, which it owes as a carrier to the sendee as well as to the sender.

The offer contained in the telegram was accepted by the purchaser in a telephone message and later was confirmed in a telegraph message sent in accordance with the custom of that trade. The message was strictly one in confirmation of the acceptance of the price contained in appellant's offer and was not a counter-proposition for purchase at a different price.

It is next contended that there was no liability because the printed telegraph blank contained stipulations exempting the company from liability. Those stipulations read as follows:

"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...