Gardner v. Western Union Tel. Co.

• Decision Date: 28 February 1916
• Docket Number: 4404.
• Citation: 231 F. 405
• Parties: GARDNER v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. Court of Appeals — Eighth Circuit

231 F. 405

GARDNER v. WESTERN UNION TELEGRAPH CO.

No. 4404.

United States Court of Appeals, Eighth Circuit.

February 28, 1916

Charles R. Alexander, of Woodward, Okl. (Howard W. Patton, of Woodward, Okl., on the brief), for plaintiff in error.

Frank Wells and Rush Taggart, both of New York City (Albert T Benedict and Francis Raymond Stark, both of New York City and James R. Keaton, David I. Johnston, and George G. Barnes all of Oklahoma City, Okl., on the brief), for defendant in error.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

CARLAND Circuit Judge.

Gardner hereinafter called the plaintiff, sued the Western Union Telegraph Company, hereinafter called the Company, for the delay in delivering a message to him which had been sent by Walter B. Scoville from Syracuse, Kan., to Quinlan, Okl., September 20, 1911. At the close of all the evidence taken at the trial of the action the court directed a verdict against the plaintiff, and he brings the case here assigning this ruling of the court as error.

The undisputed facts shown at the trial are as follows:

On the date of the message hereinafter set forth, the plaintiff was and had been a broom corn buyer at Quinlan, Okl., for about ten years.

He had an understanding with the Scoville Bros. that they would pay him $5 per ton commission on all broom corn purchased by him at the market price upon their request. On September 20, 1911, Scoville sent the following night letter:

'Send the following night letter subject to the terms on back hereof, which are hereby agreed to:

60 Paid. 'Syracuse, Ks., Sept. 20, 1911.

'To John Gardner, Quinland, Okla.:

'Hope you have secured choice crops amounting to five cars or more we need it so do not give it up even though you have to pay higher than we thought we must have it in fact to show our competitors a merry chase. So please secure all you can that is pea green. Hope you are feeling better.

'Walter B. Scoville.'

The terms on the back of said message, which are referred to above and which are material in the consideration of this case, were as follows:

'Night Letter.

'All night letter messages taken by this company are subject to the following terms which are hereby agreed to:

'The Western Union Telegraph Company will receive not later than midnight NIGHT LETTERS, to be transmitted only for delivery on the morning of the next ensuing business day, at rates still lower than its standard night message rates, as follows: The standard day rate for ten words shall be charged for the transmission of fifty words or less, and one-fifth of such standard day rate for ten words shall be charged for each additional ten words or less.

'To guard against mistakes or delays, the sender of a message should order it REPEATED; that is, telegraphed back to the originating office for comparison. For this, one-half the unrepeated message rate is charged in addition. Unless otherwise indicated on its face, THIS IS AN UNREPEATED MESSAGE AND PAID FOR AS such, in consideration whereof it is agreed between the sender of the message and this Company as follows:

'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 message is filed with the Company for transmission.'

The night letter was received at Quinlan, Okl., at 11:15 p.m., on the day of its date, but was not delivered to the plaintiff until September 25, 1911, at 10 o'clock a.m. The evidence showed that on account of the delay in the delivery of the message the plaintiff suffered material damage in the purchase of broom corn at a certain price and subsequent decrease in the market value thereof. No claim for damages was presented to the Company by the plaintiff until on or about October 22, 1912. It was stipulated at the trial that A. R. Lingafelt, district commercial superintendent of the Company for the states of Oklahoma and Arkansas, would testify, if present:

'That he has knowledge and information concerning that department of defendant company which has to do with the filing of its rates, rules, tariffs and regulations and information with the Interstate Commerce Commission, as provided by law, and that such tariffs, rates, rules and regulations as are contained in the general tariff book for the year commencing July, 1911 (a printed copy of which will be offered in evidence in above case and more particularly identified), together with the regular printed sending blanks, generally and uniformly used by said company in its business, constitute the terms and conditions upon which the defendant company is doing business as a carrier of messages, and that said rates, tariffs, rules and regulations of defendant company, as published in said tariff book, together with said blank forms, were within a reasonable time after July, 1911, and now are, offered for filing with the Interstate Commerce Commission, and are established and published annually with the knowledge and acquiescence of said Interstate Commerce Commission.'

In order to sustain the ruling of the trial court we must decide that the regulation in regard to the presentation of claims for damages within 60 days is valid as against the plaintiff. There is no indication on the face of the message that it was not an unrepeated message and paid for as such; hence, under the terms of the contract between Scoville and the Company the message must be considered as an unrepeated night letter for which the standard rate for unrepeated night letters was paid. In consideration of this rate Scoville agreed:

'That the company should not be liable for damages or statutory penalties in any case where the claim was not presented in writing within sixty days after the message was filed with the Company for transmission.'

We accept the contention of counsel that this action is not upon the contract between Scoville and the Company strictly speaking, but for damages arising from a failure on the part of the Company to promptly perform a duty which under the law it owed the plaintiff. In other words, it is an action in tort. Assuming for the present that the regulation was valid as between Scoville and the Company the question then presents itself as to whether it is binding on the plaintiff notwithstanding the fact that this action is in tort and not on the contract.

There is not entire harmony among the authorities upon this question, but upon principle and sound reason we think the plaintiff is bound by the regulation in relation to the presentation of claims for damages. Let us analyze plaintiff's case. He says that the Company was negligent in failing to deliver the message promptly. Negligence arises from a violation of duty owing by one person to another. If there is no duty there is no negligence. Without the contract between Scoville and the Company, the latter owed the plaintiff no duty, and hence there could be no negligence in the absence of the contract. So it plainly appears that plaintiff would have no cause of action except for the contract because the duty of the Company arose from the contract. May the plaintiff charge the Company with the duty arising from the contract, and at the same time repudiate one of the conditions upon which the duty was assumed? We think not. The following cases support this view: Broom v. Western Union Telegraph Co., 71 S.C. 506, 51 S.E. 259, 4 Ann.Cas. 611; Halsted v. Postal Telegraph Cable Co., 120 A.D. 433, 104 N.Y.Supp. 1016, affirmed by the Court of Appeals 193 N.Y. 293, 85 N.E. 1078, 19 L.R.A. (N.S.) 1026, 127 Am.St.Rep. 952; Ellis v. American Telegraph Co., 13 Allen (Mass.) 226; McGehee v. Western Union Telegraph Co., 169 Ala. 109, 53 So. 205, Ann. Cas. 1912B, 512; M. M. Stone & Co., v. Postal Telegraph Co., 31 R.I. 174, 76 A. 762, 29 L.R.A. (N.S.) 795; Western Union Telegraph Co. v. Van Cleave, 107 Ky. 464, 54 S.W. 827, 92 Am.St.Rep. 366; Coit v. Western Union Telegraph Co., 130 Cal. 657, 63 P. 83, 53 L.R.A. 678, 80 Am.St.Rep. 153; Frazier v. Western Union Telegraph Co., 45 Or. 414, 78 P. 330, 67 L.R.A. 319, 2 Ann.Cas. 396; Western Union Telegraph Co. v. Dant, 42 Wash.Law Rep. 722 (D.C. Court of Appeals); Findlay v. Western Union Telegraph Co. (C.C.) 64 F. 459; Culberson's Case, 79 Tex. 65, 15 S.W. 219; Manier's Case, 94 Tenn. 442, 29 S.W. 732.

We have disposed of the question under discussion on the theory that the 60-day clause was valid at common law as between Scoville and the Company. We have no doubt of this. Southern Express Co. v. Caldwell, 88 U.S. (21 Wall.) 264, 22 L.Ed. 556; M., K. & T. Ry. Co. v. Harriman Brothers, 227 U.S. 657, 33 Sup.Ct. 397, 57 L.Ed. 690; Whitehill v. Western Union Telegraph Co. (C.C.) 136 F. 499; Manier v. Western Union Telegraph Co., 94 Tenn. 442, 29 S.W. 732.

Counsel for plaintiff, however, contends that the clause in question is void under section 9, article 23, Constitution of Oklahoma, which provides that:

'Any provision of any contract or agreement, express or implied, stipulating for notice or demand other than such as may be provided by law, as a condition precedent to establish any claim, demand, or liability, shall be null and void.'

The Supreme Court of Oklahoma in Western Union Telegraph Co. v. Sights, 34 Okl. 461, 126 P. 234, 42 L.R.A. (N.S.) 419, Ann. Cas. 1914C, 204, and in Western Union Telegraph Co. v. Crawford, 29 Okl. 143, 116 P. 925, 35 L.R.A. (N.S.) 930, did so decide. The case having arisen in Oklahoma this construction of the Constitution of that state is binding upon us, if it is applicable to the case at bar.

Counsel for the Company, however, contend that by the act to regulate commerce, as amended June 18, 1910 (36 Stat. 539), the United States under the power to regulate...