Frazier v. Western Union Telegraph Co.

• Decision Date: 17 October 1904
• Citation: 78 P. 330,45 Or. 414
• Parties: FRAZIER et al. v. WESTERN UNION TELEGRAPH CO.
• Court: Oregon Supreme Court

78 P. 330

45 Or. 414

FRAZIER et al. v. WESTERN UNION TELEGRAPH CO.

Supreme Court of Oregon

October 17, 1904

Appeal from Circuit Court, Marion County; Arthur L. Frazer, Judge.

Action by P.L. Frazier and others against the Western Union Telegraph Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

The plaintiffs are real estate brokers. Some time prior to February 18, 1903, two farms were listed with them for sale designated in the record as the "Shepard" and "Schutte" farms, under an agreement with the owners that plaintiffs were to receive $100 commission on the former and $200 on the latter if they effected a sale. About that time they had a customer in the person of one E.P. Weir, who after examining the property and entering into some negotiations with the owners, started for California informing the plaintiffs that he would advise them if he concluded to take the property. On reaching Ashland he wrote signed, and delivered to the agent of the defendant at that place for transmission to the plaintiffs the following dispatch: "Ashland, Ore., Feb. 18, '03. To Frazier & Long, Salem, Ore. See Shepard. Take his last offer. Wire me at Frisco. E.P. Weir." The message was sent to the agent of the defendant at Salem, who received it about 1:20 in the afternoon of the day it bears date. It was not delivered to the plaintiffs, however, until some five days thereafter, by reason of which delay they claim they have lost their commission on the sale of the property referred to, and therefore bring this action against the company to recover the amount of such commission as damages for its negligence in not promptly delivering the message. The plaintiffs were nonsuited, and appeal.

B.F. Bonham and Carey F. Martin, for appellants.

C.A. Dolph and G.G. Bingham, for respondent.

BEAN, J. (after stating the facts).

Several questions were discussed at the argument, but it is only necessary to notice the contention that the plaintiffs are not entitled to maintain an action against the defendant for negligence in delivering the message addressed to them because they were not parties or privies to the contract between Weir and the company for its transmission, nor was the company advised by the terms of the message or otherwise that they were the parties for whose benefit such contract was made.

In England the doctrine is settled that the addressee of a telegraphic message cannot sue the company for error or negligence in its transmission or delivery, because the obligation of the company springs entirely from the contract between it and the sender, and the addressee is not a party or privy thereto. Playford v. United Kingdom Tel. Co L.R. 4 Q.B. 705. This doctrine, however, does not prevail generally in this country, and the weight of authority is that the addressee of a message may sue the telegraph company in his own name, and recover such damages as he may have sustained by reason of its negligence, when the message was intended for his benefit, and the company had knowledge of that fact. 2 Shearman & Redfield, Negligence (5th Ed.) § 543; Gray, Communication by Telegraph, § 65; Thompson, Law of Electricity, § 427; Joyce, Electric Law, § 1008; 21 Enc.Pl. & Pr. 509. A telegraph company is not a common carrier in the sense that it is an insurer against mistakes in the transmission of messages or delay in their prompt delivery, but it is an instrument of commerce and a public service corporation. It therefore owes the duty to those for whose benefit it undertakes to transmit and deliver messages to transmit and deliver them without unreasonable delay. For a violation of this duty, or for a negligent performance thereof, it is responsible to the party for whose benefit the contract was made, whether it be the sender or the addressee. 27 Am. & Eng.Enc.Law (2d Ed.) 1024; Thompson, Electricity, § 427; Postal Tel. Cable Co. v. Barwise, 11 Colo.App. 328, 53 P. 252; Webbe v. Western Union Tel. Co., 169 Ill. 610, 48 N.E. 670, 61 Am.St.Rep. 207; McPeek v. Western Union Tel. Co., 107 Iowa, 356, 78 N.W. 63, 43 L.R.A. 214, 70 Am.St.Rep. 205. But the right of an addressee to recover is necessarily grounded upon the contract between the company and the sender, whether between the action be in form technically for a breach of contract or one sounding in tort. Without the contract under which the message was forwarded as a foundation for the cause of action, no recovery whatever could be had. In order for the addressee to sue, it is essential, therefore, that it appear that he was to be benefited by the contract for sending the message, and that fact was known to the company when it received the message for transmission, either from its language or otherwise. The addressee can maintain an action only on the theory that he was the party intended to be benefited by the contract between the sender and the company, and that he is injured by a failure to perform such contract. Messrs. Shearman & Redfield say that the right of an addressee of a telegraphic message to sue for the negligence of the company, either in its transmission or delivery, rests on the principle that, where two persons make a contract for the benefit of a third person, such third person may sue upon it. 2 S. & R.Neg. (5th Ed.) § 543. Under this doctrine the right of an addressee to sue does not exist unless the sender of the message and the company, at the time the...