Dunham v. Western Union Tel. Co.

• Decision Date: 27 January 1920
• Citation: 85 W.Va. 425
• Court: West Virginia Supreme Court
• Parties: Dunham v. Western Union Telegraph Co.

85 W.Va. 425

Dunham

v.Western Union Telegraph Co.

Supreme Court of Appeals of West Virginia.

Submitted January 20, 1920.

Decided January 27, 1920.

1. Action on the Case Matters in Confession and Avoidance

Provable Under General Issue.

In an action of trespass on the case defendant may, with few exceptions, prove under the general issue matters in confession and avoidance. (p. 427).

2. Telegraphs and Telephones Lawful Conditions of Contract

Provable Under General Issue.

In an action of tort brought by the addressee of a telegram for damages for failure to deliver it, the telegraph company may prove as defenses, under the general issue, any reasonable and lawful conditions of the contract between the company and the sender, (p. 427)

3. Same Conditions in Contract Against Liability for Mistake

or Negligence Beyond Valuation Valid.

The Act of Congress of June 18, 1910, declaring telegraph companies to be common carriers and subject to the federal statutes regulating interstate commerce, and authorizing them to make a reasonable and just classification of messages transmitted by them, into day, night, repeated, unrepeated, letter, commercial, press, government, and to charge different rates for the different classes of messages, warrants such company in inserting, as a condition of its contract with the sender of a message that, in no event shall it be liable for damages "for any mistakes or delays in the transmission or delivery, or for the non-delivery, 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." Such a condition is a reasonable regulation within the purview of the federal statute. (p. 429).

4. Same Condition Limiting Free Delivery Limits Valid.

A condition in a contract for the transmission of a telegram, prescribing free delivery limits to the radius of one mile in cities of 5, 000 population or more, and to one-half mile in smaller towns, is a reasonable regulation. (p. 433).

5. Same Conditions Limiting Time for Presentation of Claim

Valid.

A condition in such contract relieving a telegraph company from liability for damages, unless the claim therefor is presented in writing within sixty days is also a reasonable and valid regulation. (p. 432).

6. Same Conditions in Contract Binding on Addressee.

All just and reasonable conditions and regulations, prescribed in a contract between a telegraph company and the sender of a message, are binding on the addressee, whether his action to recover damages for breach of duty be in tort, or in assumpsit on the contract. (p. 432).

Error to Circuit Court, Wood County.

Action of trespass on the case by W. W. Dunham against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Fitzpatrick, Campbell, Brown & Davis, for plaintiff in error. S.O. Prunty and Brown & Blizzard, for defendant in error.

Williams, President:

The Western Union Telegraph Company prosecutes this writ of error to a judgment recovered against it by W. W. Dunham in an action of trespass on the case for failure to deliver a message sent to him at Parkersburg, W. Va., over defendant's lines from Cleveland, Ohio, by Mildren k Son.

Said Dunham is an oil and gas well driller residing in Parkersburg, and claims he had a contract of employment with Mildren & Son, at $6.00 per day, to drill a gas well for them as soon as they should erect the rigging and make the necessary preparations for drilling. Pursuant to a previous understanding between them, and as soon as the rigging was completed, Mildren & Son delivered to defendant at its office in Cleveland, on the 27th of October, 1914, the following telegram, and prepaid the charges for the transmission and delivery thereof to plaintiff in Parkersburg, viz: "W. W. Dunham,

1724 Oak Street, Parkersburg, W. Va.

"Ready to work Thursday morning Pilgrim Farm Riverside Drive north of Kammes.

J. M. Mildren." The message was not delivered to plaintiff nor to any member of his family at his residence, and learning from another source that Mildren & Son had delivered to defendant in Cleveland a message to be sent to him, about the 27th of October, he inquired at defendant's office in Parkersburg on the 4th of November following, and was handed the message by one of its agents. This was after seven o'clock P. M., and he left Parkersburg by train the next morning for Cleveland. On his arrival there he learned that Mildren & Son, having received no reply to their message, had employed another driller in his place and, therefore, could not give him employment. He was permitted to prove, over defendant's objection, that he made unsuccessful efforts to obtain other employment; that his contract for service with Mildren & Son was at $6.00 per day for the period required to drill the well, which was shown to require forty days; and that the expenses of his trip to Cleveland and return, including his board, were $9.04. He recovered judgment for $249.04.

Complaint is made (1) of the court's rejection of three special pleas tendered by defendant; (2) the admission of improper testimony over the objection of defendant; and (3) of the giving of certain instructions to the jury on behalf of the plaintiff and the refusal to give certain others offered by defendant.

The special pleas set up certain conditions, printed on the blank form of telegram, made a part of the contract between defendant and the sender of the message. It was not error, in any event, to reject the special pleas, because, if the matters averred were valid defenses, they were provable under the general issue. The action is trespass on the case, wherein the general issue is "not guilty", which is merely a denial or traverse of the facts alleged. Logically speaking, the issue would seem to confine the defense to such denial. But, say Stephen and Chitty, there has been a relaxation of the rule or principle, similar to that which has taken place in actions of assumpsit, and now, under the plea of not guilty, defendant may not only contest the truth of the declaration, but, (with certain exceptions not applicable here), may make any defenses that tend to show plaintiff has no right of action, although they are in confession and avoidance of the declaration. Andrew's Stephen's Pleading, Sec. 118; 1 Chitty on Pleading, 490; and Ridgeley v. Town of West Fairmont, 46 W. Ya. 445.

Defendant offered no evidence and at the conclusion of plaintiff's evidence moved the court to exclude it, which motion the court overruled and defendant excepted. Depositions of certain witnesses had been taken by defendant which, not being offered by it, were read by the plaintiff. The original telegram was identified by Mr. J. M. Mildren, the sender of it, and filed with his deposition. On the face of it there appeared the following words printed in full face type: "SEND the following Telegram, subject to the terms on back hereof, which are hereby agreed to." The conditions that are material here are the following:

"1. The Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of an UNEEPEATED telegram, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for non-delivery, 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 non-delivery, 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.

"4. Telegrams will be delivered free within one-half mile of the Company's office in towns of 5, 000 population or less, and within one mile of such office in other cities or towns. Beyond these limits the Company does not undertake to make delivery, but will, without liability, at the sender's request, as his agent and at his expense, endeavor to contract for him for such delivery at a reasonable price.

"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."

This was an unrepeated, interstate message, upon which no value was placed other than that stipulated in the conditions printed on the back of the telegram and referred to in the face thereof as the contract between the sender and the defendant company. The wrong complained of is its failure to deliver the message to the sendee. No excuse is offered for its neglect of duty, but it insists that its liability is limited by the terms of the contract to forty-six cents, the rate charged and paid by the sender for transmitting the message, and in no event could its liability exceed fifty dollars. By the Act of Congress of June 18, 1910, telegraph companies doing an interstate business are declared to be common carriers and subject to the federal statute regulating interstate commerce. The act authorizes them to classify messages into day, night, repeated, unrepeated, letter, commercial, press, government, and such other classes as are just and reasonable, and to charge different rates for the...