Frederick v. Western Union Telegraph Co.
| Decision Date | 23 November 1920 |
| Docket Number | 33360 |
| Citation | 179 N.W. 934,189 Iowa 1338 |
| Parties | FRANKIE FREDERICK, Appellee, v. WESTERN UNION TELEGRAPH COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Floyd District Court.--C. H. KELLEY, Judge.
THE appellee, the sendee of an interstate telegraph message obtained verdict and judgment for $ 250 on account of alleged negligence in failing to deliver said telegram. The appellant contends that permitting this recovery was violative of valid contract limitations, under which there was no right to recover beyond a return of the amount paid for transmitting said message, and, in any event, no right to recover more than $ 50.--Reversed and remanded.
Reversed and remanded.
Francis R. Stark, Smith & Rinard, and Miller, Kelly, Shuttleworth & Seeburger, for appellant.
H. J Fitzgerald, for appellee.
I.
An interstate message, addressed to appellee, was of such character as that it advised the defendant mental pain and anguish might be suffered if said message was not delivered at all, or delivered too late. While the fact is challenged by appellee, the record establishes that a contract between the parties was put in evidence. It is a contract that has many times had the consideration of the courts. So far as it is material to this controversy, it is an agreement that, as to unrepeated messages, there shall be no recovery for delay in delivery or failure to deliver, beyond the amount paid for transmission, and that, at all events, so far as unrepeated messages are concerned, the recovery for such failure to deliver, or delay in delivery, shall not exceed $ 50. As said, the verdict was for a sum greater than $ 50. It is absolutely settled that a contract limiting recovery in the case of unrepeated messages to the price paid for transmission is reasonable and enforcible--semble, one limiting recovery to $ 50; settled that it cannot be urged collaterally that such provisions are unreasonable, and that such attack must be done by direct proceedings before the interstate commerce commission.
There can be a valid contract that not more than was charged for sending an unrepeated interstate telegram shall be recovered for negligence in handling such message. Primrose v. Western Union Tel. Co., 154 U.S. 1 (14 S.Ct. 1098, 38 L.Ed. 883); Postal Tel.-Cable Co. v. Warren-Godwin Lbr. Co., 251 U.S. 27 (40 S.Ct. 69, 64 L.Ed. 118); Western Union Tel. Co. v. Bank, 53 Okla. 398 (156 P. 1175); Boyce v. Western Union Tel. Co., 119 Va. 14 (89 S.E. 106); Williams & Sons v. Postal Tel.-Cable Co., 122 Va. 675 (95 S.E. 436); Western Union Tel. Co. v. Lee, 174 Ky. 210 (192 S.W. 70); Meadows v. Postal Tel. & Cable Co., 173 N.C. 240 (91 S.E. 1009); Haskell I. & S. Co. v. Postal Tel.-Cable Co., 114 Me. 277 (96 A. 219); Williams v. Western Union Tel. Co., 203 F. 140; Gardner v. Western Union Tel. Co., 231 F. 405.
It is true that in none of these cases was the message involved a so-called death message. But, since the ground upon which the validity of such an agreement is affirmed rests on affirming that such a limitation is upheld by the controlling Federal law, unless the interstate commerce commission holds it to be unreasonable, it is, of course, immaterial whether the contract is made as to a message not a death message, or as to a death message. See Klotz v. Western Union Tel. Co., 187 Iowa 1355, 175 N.W. 825.
II. Is it settled, because this proposition is established, that a clause in the same contract limiting liability to $ 50 is to be given no effect? It is true that gross negligence is not a distinct cause of action, and is but a degree of negligence, and that negligence without reference to degree is the basis of the right to recover. Williams v. Western Union Tel. Co., 203 F. 140; Milwaukee & St. P. R. Co. v. Arms, 91 U.S. 489, 23 L.Ed. 374; and see Denny v. Chicago, R. I. & P. R. Co., 150 Iowa 460, at 464, 130 N.W. 363, and Railroad Co. v. Lockwood, 84 U.S. 357, 17 Wall. (U.S.) 357, 21 L.Ed. 627. And we may concede the holding of the Williams case that, even where there is gross negligence, a contract which deals with unrepeated messages may limit recovery to the price charged for transmission. But it does not follow that, where the contract has a limitation to said price, and, as well, another that recovery shall not exceed $ 50, that the last provision has no effect. We think that, under familiar rules, it is our duty to construe these two provisions together. The trial court proceeded on the theory that more than the price received for sending the message could be recovered, if the handling of such message as the one before us was grossly negligent. We shall consider later whether such negligence will sustain recovery of more than $ 50. At present, we shall proceed as if the dispute were whether gross negligence in dealing with a "death message" will permit recovery beyond the price paid for transmission, and up to $ 50. On the question whether, in any event, more could be recovered if there were gross negligence, appellant first presents that the evidence is insufficient to show gross negligence.
It is undisputed that the message on its face showed that, unless it was delivered with reasonable promptness, the addressee might be caused mental pain and suffering, by being prevented from seeing her mother while still alive. The jury could find that the message was sent in care of one well known in the comparatively small town to which the message was addressed that the agent of the defendant at that point met the addressee on the day on which the message should have been delivered, had reasonable care been used, and did not advise her that such a message existed. We are not saying that this constitutes gross negligence, as matter of law, but do say that a jury could find such negligence therefrom. To state the rule that there shall be no liability unless there be gross negligence, is one thing; to take from the jury the right to find whether there is sufficient evidence of gross negligence, is quite another. We have time and again declared that, though evidence must meet certain standards, it is primarily for the jury to say whether they have been met. This brings us to the effect of a finding of gross negligence. As said, the contract provision limiting recovery to the sum paid for sending must be construed in connection with that other part of the contract which does make a recovery up to $ 50 possible, even though the price for sending the message is less than $ 50. We hold the correct construction of this contract as a whole to be that, where the telegraph company is grossly negligent, it may be made to respond for such negligence beyond the price paid for sending the telegram, but not to exceed $ 50. And we cannot construe the $ 50 limitation to be operative only where the message is a repeated one, because the contract provides that, as to such messages, up to 50 times the amount paid for transmission may be recovered; and it is, of course, manifest that...
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