Francis v. Western Union Telegraph Co.
| Decision Date | 17 July 1894 |
| Docket Number | 8807 |
| Citation | 59 N.W. 1078,58 Minn. 252 |
| Parties | S. O. Francis v. Western Union Telegraph Co |
| Court | Minnesota Supreme Court |
Argued May 16, 1894
Appeal by defendant, the Western Union Telegraph Company, from an order of the District Court of Ramsey County, John W. Willis J., made November 29, 1893, denying its motion for a new trial after verdict for plaintiff, O. S. Francis, for $ 760.
Order reversed.
George H. Fearsons and Ferguson & Kneeland, for appellant.
The condition requiring the presentation of claim for damages within sixty days after filing the message for transmission is not unreasonable or void. Cole v. Western Union Tel Co., 33 Minn. 227; Lewis v. Great Western R. Co., 5 H. & N. 867; Southern Exp. Co. v. Caldwell, 21 Wall. 264; United States Exp. Co. v. Harris, 51 Ind. 127.
Where the sender has made use of a message blank, the conditions incorporated therein are brought home to him and deemed to have received his assent. Heimann v. Western Union Tel Co., 57 Wis. 562; Kiley v. Western Union Tel Co., 109 N.Y. 231; Wolf v. Western Union Tel Co., 62 Pa. St. 83; Grinnell v. Western Union Tel. Co., 113 Mass. 299; Beasley v. Western Union Tel. Co., 39 F. 181.
Where the court upon the trial presents to the jury instructions upon a material issue which are inconsistent, contradictory and liable to mislead, the verdict cannot stand. McCormick v. Kelly, 28 Minn. 135; McKelvey v. Chesapeake & O. Ry. Co., 35 W.Va. 500; Thompson v. Western Union Tel. Co., 106 N.C. 549; St. Louis, I. M. & S. Ry. Co. v. Needham, 52 F. 371.
Mental anguish alone claimed to have been suffered from the negligent failure by a telegraph company to perform a contract to deliver a message, there being no suggestion of malice, fraud or deception, is not a basis for recoverable damages. Lynch v. Knight, 9 H. L. Cas. 577; Hamlin v. Great Northern Ry. Co., 1 H. & N. 408; Hobbs v. London & S.W. Ry. Co., L. R. 10 Q. B. 111; Walsh v. Chicago, M. & St. P. Ry. Co., 42 Wis. 23; Canning v. Williamstown, 1 Cush. 451; Meidel v. Anthis, 71 Ill. 241; Oldfield v. New York & H. R. R. Co., 14 N.Y. 310; Tilley v. Hudson River R. Co., 29 N.Y. 252; Dorrah v. Illinois Cent. R. Co., 65 Miss. 14; Wyman v. Leavitt, 71 Me. 227; Bovee v. Danville, 53 Vt. 183; Paine v. Chicago, &c., R. Co., 45 Ia. 569; Joch v. Dankwardt, 85 Ill. 331; Covington St. R. Co. v. Packer, 9 Bush 455; Clinton v. Laning, 61 Mich. 355; Trigg v. St. Louis, &c., Ry. Co., 74 Mo. 147; Kennon v. Gilmer, 131 U.S. 22; Wilcox v. Richmond & D. Ry. Co., 52 F. 264.
In accordance with these authorities, this court has held that mental anguish, like physical pain, to be taken into consideration in such cases, is confined to such as is endured by the plaintiff in consequence of a personal injury to himself. Keyes v. Minneapolis & St. L. Ry. Co., 36 Minn. 290.
The first innovation (and one which has never been approved outside of this country) was made in Texas in 1881 in the case of So Relle v. Western Union Tel. Co., 55 Tex. 308. Since that decision the Texas court has made peculiar fluctuations. See Gulf, &c., Ry. Co. v. Levy, 59 Tex. 542; Western Union Tel. Co. v. Cooper, 71 Tex. 507; Western Union Tel. Co. v. Brown, 71 Tex. 723; Western Union Tel. Co. v. Simpson, 73 Tex. 422; Rowell v. Western Union Tel. Co., 75 Tex. 26; Western Union Tel. Co. v. Adams, 75 Tex. 531; Western Union Tel. Co. v. Kirkpatrick, 76 Tex. 217; Western Union Tel. Co. v. Rosentreter, 80 Tex. 406; Hale v. Bonner, 82 Tex. 33.
The doctrine of these cases has gained recognition in Indiana, Kentucky and North Carolina. It has also been recognized in a qualified sense in Alabama, and, largely under the influence of a local statute, in Tennessee, with a vigorous dissent. The cases are not agreed, however, as to the nature of the action, nor as to the precise ground upon which the recovery rests. In Kentucky, Alabama and Tennessee the action was treated, as it has been uniformly in Texas, as resting upon the breach of a contract. In Indiana and North Carolina the action has been regarded as resting partly in tort.
On the other hand, the correctness of these cases has been denied and the fallacies of their reasoning carefully pointed out. Western Union Tel. Co. v. Rogers, 68 Miss. 748; Chapman v. Western Union Tel. Co., 88 Ga. 763; West v. Western Union Tel. Co., 39 Kan. 93; Newman v. Western Union Tel. Co., 54 Mo.App. 434; Summerfield v. Western Union Tel. Co., 87 Wis. 1; Chase v. Western Union Tel. Co., 44 F. 554; Crawson v. Western Union Tel. Co., 47 F. 544; Tyler v. Western Union Tel. Co., 54 F. 634; Kester v. Western Union Tel. Co., 55 F. 603; Gahan v. Western Union Tel. Co., 59 F. 433.
Which of these conflicting views shall be adopted as the law of this state? This is the first appearance in this court of such an action against a telegraph company. This court is free to choose. Shall it abide by the long established principles of the common law, or declare for the innovation announced by the Texas court, and which has made that court in its efforts to stem the tide of "intolerable litigation" which followed in its wake a spectacle both pathetic and ridiculous.
Henry & R. L. Johns, for respondent.
The condition in the contract printed on the back of the message sent by plaintiff's wife differs materially from the condition held to be reasonable in the case of Cole v. Western Union Tel. Co., 33 Minn. 227. There the condition was, "within sixty days after sending the message." The condition on the new form is that a claim for damages must be presented "within sixty days after the message is filed with the company for transmission." The change was made because of certain decisions which held that the condition in the old form, requiring a claim for damages to be presented within a specified time "after sending the message," did not apply where the claim was founded upon a failure to send the message at all. Western Union Tel. Co. v. Way, 83 Ala. 542; Western Union Tel. Co. v. Yopst, 118 Ind. 248.
This limitation is unreasonable, and especially so as to the claim of the person to whom the message is sent. It is void under the statute of this state, which provides that a telegraph company "shall be liable for want of ordinary care, any contract, notice or condition to the contrary notwithstanding, and any notice, condition or contract stipulating for exemption from the consequences of the lack of ordinary care shall be void." Laws 1885, ch. 208; Southern Exp. Co. v. Caperton, 44 Ala. 101; Adams Exp. Co. v. Reagan, 29 Ind. 21.
The rule and the reasons assigned for it are not applicable to the present case, in which the person to whom the message is addressed makes claim for damages. Western Union Tel. Co. v. McKibben, 114 Ind. 511; Johnston v. Western Union Tel. Co., 33 F. 362.
A knowledge of the condition must be brought home to the sender of the message by evidence aliunde. The fact that the message was written on a blank upon which the condition is printed does not raise a presumption of law or fact that the sender had knowledge of it. Tyler, U. & Co. v. Western Union Tel. Co., 60 Ill. 421; Blossom v. Dodd, 43 N.Y. 264.
Such a limitation must be supported by a consideration of its own. As a common carrier is bound to carry under his common law liability for a reasonable price, and as he cannot limit his common law liability except by special contract assented to, it would seem to follow that a special contract with limited liability without any reduction in price is a nudum pactum. There is an important difference between conditions printed on the face of the message and those printed on the back. Wilson v. Chesapeake, &c., R. Co., 21 Gratt. 654; Brown v. Eastern R. Co., 11 Cush. 97; Malone v. Boston & W. R. Co., 12 Gray, 388; Quimby v. Vanderbilt, 17 N.Y. 306.
If the condition which is intended to limit the liability of the carrier be printed on the back of the ticket, no presumption arises that the party receiving it had any knowledge of it. Limburger v. Westcott, 49 Barb. 283; McMillan v. Michigan, S. & N. I. R. Co., 16 Mich. 79; Railroad Co. v. Manufacturing Co., 16 Wall. 318; Brittan v. Barnaby, 21 How. 527; Verner v. Sweitzer, 32 Pa. St. 208.
The leading question in this case is, the right of the plaintiff to recover damages for mental anguish suffered by him, by reason of failure and neglect of defendant to transmit the telegram. A telegraph company is a common carrier of intelligence. The intelligence may relate to a business transaction, or it may relate to matters of far greater importance, involving happiness and peace of mind. In the former case the telegraph company is held responsible. Shall it be permitted to escape all liability when it fails to do its duty in those more important matters committed to its care?
The legislature has declared that all actual damages are recoverable against a telegraph company for failure or neglect to transmit or deliver a message within a reasonable time after the reception thereof. Laws 1885, ch. 208, § 5. This court has held in a number of cases that injury to the feelings, even when unaccompanied by any injury to the person, property or health, is actual damage for which the party injured is entitled to recover. Woodward v. Glidden, 33 Minn. 108; McCarthy v. Niskern, 22 Minn. 90; Larsen v. Chase, 47 Minn. 307.
The courts of the following states have held such damages recoverable: Indiana, Renihan v. Wright, 125 Ind 536; North Carolina, Thompson v. Western Union Tel. Co., 106 N.C. 549; Tennessee, Wadsworth v. Western Union Tel. Co., 86 Tenn. 695; Alabama, Western Union Tel. Co. v. Henderson, 89 Ala. 510; Kentucky, Chapman v. Western Union Tel. Co., 13 S.W. 880; Texas, Western Union Tel. Co. v. Nations, 82 Tex. 539; Illinois, Logan v. Western Union Tel. Co., 84 Ill. 468; Kansas, West...
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