Freeman v. Western Union Tel. Co.

• Decision Date: 28 May 1928
• Docket Number: 12454.
• Citation: 145 S.E. 294,147 S.C. 423
• Parties: FREEMAN v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

145 S.E. 294

147 S.C. 423

FREEMAN v. WESTERN UNION TELEGRAPH CO.

No. 12454.

Supreme Court of South Carolina

May 28, 1928

Appeal from Common Pleas, Circuit Court of Spartanburg County; C. A Mays, Special Judge.

Action by E. J. Freeman against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Following is the order of Special Judge Mays, refusing a new trial:

This matter comes before me on motion for a new trial made by defendant after the verdict in favor of plaintiff for $400. It appears that on July 14, 1925, one Bruce Owens, then at Blowing Rock, N. C., and having an interest in several orchestras at summer resort hotels, desired a man to direct his orchestra at Carolina Beach, near Wilmington. One Hamilton, a member of his orchestra at Blowing Rock, had recommended to him for the position the plaintiff, who was director of music at Clemson College, and without employment during the summer vacation period. Therefore Bruce Owens on this date delivered to the defendant, at its office in Blowing Rock, the following message for transmission to the plaintiff:

"Could you consider taking over direction of my nine-piece orchestra at Carolina Beach, Wilmington. Can offer you about thirty-five dollars a week plus expenses. Contract closes September seventh. Excellent beach. Nice summer work. Butterfly Hamilton suggests you. Please wire here immediately."

The message was promptly transmitted to the defendant's office at Clemson College and carried by a messenger to plaintiff's home. The messenger, finding the house closed, left the message behind the screen door on the front porch. The plaintiff never knew of the existence of the message, and Owens never knew of its nondelivery, until the season for such work had practically closed.

It further appears that, had Owens been notified of the nondelivery of the message, he could have and would have used other means within his reach to have gotten the message to the plaintiff, and that, had the plaintiff received the message, he would have accepted the employment. He was unable to get employment during the entire period mentioned in the telegram. The defendant's motion raises three main questions, which were very ably argued by counsel for each party. These will be discussed seriatim.

First. Does the complaint state a cause of action?

This question is answered affirmatively on the authority of Simkins v. Western Union Telegraph Co., 97 S.C. 415 81 S.E. 657, as follows:

"The complaint is sufficient if it alleges knowledge of facts and circumstances from which a person of ordinary intelligence and prudence should have known that such damages would result from delay in delivering the message for facts are well pleaded which may, by reasonable intendment, be inferred from the facts and circumstances directly alleged."

Second. Is the action barred by failure of the plaintiff to present the claim in writing within 60 days after the message was filed with the company for transmission?

The contract provides in one of the printed stipulations on the back of the form used for receiving messages as follows:

"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 message is filed with the company for transmission."

The message was filed July 14th. The plaintiff's first knowledge that such a message had been sent was on September 4th, when he returned to Clemson and found it on the front porch. The action was commenced without any previous notice by service of summons and complaint on September 17th, all the same year. The serving of the summons and complaint is sufficient written notice, if within time. Smith v. Telegraph Co., 77 S.C. 378, 58 S.E. 6, 12 Ann. Cas. 654.

The provision quoted has been approved by the Interstate Commerce Commission, and is valid and binding under the Federal Act of June 18, 1910. 36 Stat. 539.

The question is one of construction. The defendant asked for a literal construction, which would count the 60 days from the date of filing, July 14th, notwithstanding the fact that plaintiff had no means of knowing that it had ever been filed until he found the message on September 4th. The courts, however, both before and since this provision of the contract was given the sanctity of the law by virtue of the act of Congress and the approval of the Interstate Commerce Commission has been given a reasonable construction, which makes an exception of a case such as this, where the plaintiff, through the fault of the defendant, had no means of knowing of the telegram until the 60 days had almost expired. Having brought his action within 13 days after knowledge of the telegram, he was within time. Mr. Justice Holmes, in construing this identical provision in the Supreme Court of the United States in Western Union Telegraph Co. v. Czizek, 264 U.S. 286, 44 S.Ct. 329, 68 L.Ed. 685, says:

"This could not be held to apply literally to a case where through the fault of the company the plaintiff did not know of the message until the sixty days had passed. It might be held to give the measure of a reasonable time for presenting the claim after the fact was known, in the absence of anything more."

Third. Was the negligence of the defendant the proximate cause of plaintiff's damage?

The law appears well established that, where the message is neither an acceptance of a previous offer nor itself a definite offer, but merely an invitation to submit an offer or to meet or correspond with the sender for the purpose of negotiation, the damage is too remote to sustain an action. 37 Cyc. 1760; Bird v. Western Union Telegraph Co., 76 S.C. 345, 56 S.E. 973; Harmon v. Western Union Telegraph Co., 65 S.C. 490, 43 S.E. 959.

On the other hand, the law seems to be that, where it contains an offer, which would have been accepted but for its nondelivery caused by the negligence of the company, the loss of the employment is the proximate result of the negligence, and damage can be recovered. 37 Cyc. 1762; Simkins v. Western Union Telegraph Co., 97 S.C. 413, 81 S.E. 657; Wallingford v. Western Union Telegraph Co., 53 S.C. 410, 31 S.E. 275; and 60 S.C. 201, 38 S.E. 443, 629; Lathan v. Western Union Telegraph Co., 75 S.C. 129, 55 S.E. 134.

The question as to whether the telegram in the case at bar is to be covered by the one or the other of the foregoing rules is one of construction. Does the message constitute an offer in such terms that the defendant should have so construed it and been put on notice that its nondelivery would probably cause the damage, or was it a mere invitation to negotiate? Bearing in mind that the message is an informal communication between laymen, and is not couched in the exact technical language which lawyers might have used, I am of the opinion that an offer was intended, and that the plaintiff would have accepted and procured the employment had the message been received by him. The first sentence of the message, "Could you consider taking over direction of my nine-piece orchestra at Carolina Beach, Wilmington?" was merely an introduction to the main purpose of the telegram. The next sentence, "Can offer you about thirty-five dollars a week plus expenses," was the sender's way of saying, "I offer you," etc., and among laymen is so understood. The message itself shows that Owens had already investigated the plaintiff's qualifications and desired him for the position. This is shown by the sentence, "Butterfly Hamilton suggests you."

There is a line of cases in which messages have been considered as mere inquiries in the light of the relationship of the parties, which otherwise might have been considered as definite offers, as in Moulton v. Kershaw, 59 Wis. 316, 18 N.W. 172, 48 Am. Rep. 516:

"In consequence of a rupture in the salt trade, we are authorized to offer Michigan fine salt, in full carload lots of 80 to 95 barrels, delivered at your city, at 85 cents per barrel, to be shipped per C. & N.W. R. R. Co. only. At this price it is a bargain, as the price in general remains unchanged. Shall be pleased to receive your order."

And, in Cherokee Tanning Extract Co. v. Western Union Telegraph Co., 143 N.C. 376, 55 S.E. 777, 118 Am. St. Rep. 806:

"Kindly advise us by wire Monday if you can use about 1,500 creosote barrels between

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