Haskell Implement & Seed Co. v. Postal Telegraph-Cable Co.

• Decision Date: 28 December 1915
• Citation: 114 Me. 277,96 A. 219
• Parties: HASKELL IMPLEMENT & SEED CO. v. POSTAL TELEGRAPH-CABLE CO.
• Court: Maine Supreme Court

96 A. 219

114 Me. 277

HASKELL IMPLEMENT & SEED CO.

v. POSTAL TELEGRAPH-CABLE CO.

Supreme Judicial Court of Maine.

Dec. 28, 1915.

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Action by the Haskell Implement & Seed Company against the Postal Telegraph-Cable Company. There was verdict for plaintiff, and defendant excepted. Exceptions sustained.

Argued before SAVAGE. C. J., and SPEAR, BIRD, HALEY, and HANSON, JJ.

Tascus Atwood, of Auburn, for plaintiff. White & Carter, of Lewiston, for defendant.

HANSON, J. This is an action to recover damages for a mistake in the transmission of a message from Lewiston, Me., to Moline, Ill. The writ was dated December 19, 1913. The case was tried at the January term, 1915. The presiding justice directed a verdict for the plaintiff for $106.50, and the case is here upon defendant's exceptions to such order, and other grounds stated in the exceptions as follows:

"Upon the conclusion of the evidence the defendant moved that a verdict be directed for it. This motion was overruled by the court. The defendant then requested the court to instruct the jury that the plaintiff was not entitled to recover more than the sum of 68 cents, being the amount paid for sending the message. The court refused to give this instruction. The court then directed the jury to return a verdict for the plaintiff for the sum of $106.50; it being admitted that, if the plaintiff was entitled to recover more than 68 cents, this sum of $106.50 fixed by the court was correct.

"To which rulings and instructions and refusals to instruct the defendant excepts, and prays that its exceptions may be allowed."

The material parts of the blank supplied by the defendant with the message in question follows:

"Postal Telegraph—Commercial Cable.

"Clarence H. McKay, President.

"Night Telegram.

"Delivered 6.24 Received at B. 16 Red Chgd.

"The Postal Telegraph-Cable Company (Incorporated) transmits and delivers night messages subject to the terms and conditions printed on the back of this blank.

"Design Patent Applied For.

"(Chge Haskell Co.) Lewiston, Me., Oct. 21, 1912.

"B—7624 Design Patent No. 40529.

"Send the following message, without repeating, subject to the terms and conditions printed on the back hereof, which are hereby agreed to:

"'Oct. 21, 1912.

"'To Deere & Co., Moline, Ill.

"'Have gotten five thousand better price will leave for Moline Tuesday night unless you request otherwise. "

"'B50 A. M. & M. Y. 6.39 P.

"'E. P. Webster.'

* * * * * * * * *

"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. * * * It is agreed between the sender of the message written on the face hereof and the Postal Telegraph-Cable Company that said company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message, beyond the amount received for sending the same, nor for mistakes or delays in the transmission or delivery, or for nondelivery, of any repeated message beyond fifty times the sum received for sending the same, unless specially valued, nor in any case for delays arising from unavoidable interruption in the working of its lines, nor for errors in cipher or obscure messages. In any event the company shall not be liable for damages for any mistakes or delays in the transmission or delivery, or for the nondelivery of this message, whether caused by the negligence of its servants or otherwise, beyond fifty times the repeated message rate, at which amount this message, if sent as a repeated message, is hereby valued, unless a greater value is stated in writing hereon at the time the message is offered to the company for transmission and an additional sum paid or agreed to be paid based on such value equal to one-tenth of one per cent. thereof. And this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination."

The message delivered to the correspondent in Moline was as follows:

"Have gotten five thousand better price will leave for Moline Thursday night unless you request otherwise."

The word "Thursday" was written in place of "Tuesday" after the telegram left the line of the defendant company, and while in the course of transmission over the line of a connecting company, and the plaintiff alleges that the damages sued for resulted directly from the error above mentioned. In his brief, counsel for the plaintiff in support of his contention relies entirely on the rule laid down in Ayer v. Telegraph Company, 79 Me. 493, 10 Atl. 495, 1 Am. St. Rep. 353, a case presenting the same question, but differing widely in the facts involved, and in the wording of the contract in evidence. In that case a lot of laths were offered to a Philadelphia correspondent in a telegram sent in these words:

"Will sell 800 M laths delivered at your wharf, two ten net cash July shipment. Answer quick."

The telegram was received with the word "ten" omitted. The offer was accepted, and the plaintiff, on account of the error, lost $80, for which he brought action. The defendant in that case offered no evidence, and, quoting from the opinion—

"did not undertake to account for, or explain the mistake in transmission of the message. The presumption therefore is that the mistake resulted from the fault of the telegraph company. We cannot consider the possibility that it may have resulted from causes beyond the control of the company. In the absence of evidence on that point, we must assume that for such an error the company was in fault. * * *

"The fault and consequent liability of the defendant company being thus established, the only remaining question is the extent of that liability in this case. The plaintiff claims, it extends to the difference between the market price of the laths, and the price at which they were shipped. The defendant claims its liability is limited to the amount paid for the transmission of the message. It claims this limitation on two grounds: (1) The company relies upon a stipulation made by it with the plaintiff, as follows: 'All messages taken by this company are subject to the following terms: 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 regular rate is charged in addition. It is agreed between the sender of the following message, and this company that said company shall not be liable for mistakes or delays in the transmission, or delivery, or for nondelivery of any unrepeated message, whether happening by negligence of its servants, or otherwise, beyond the amount received for sending the same.'"

And then the court asked the question: "Is such n stipulation in the contract of transmission valid, as a matter of contract assented to by the parties, or is it void as against public policy?"

The court answered in no uncertain terms:

"We think it is void."

It is obvious that the Ayer Case cannot be accepted as controlling in this case. The facts are not the same, and the terms of the contract differ in a most important particular. It will be observed that such difference was the real basis of the opinion, and the various expressions therein in relation to individuals, corporations, and the public, which were based upon the facts in the case, were then appropriate and applicable, where the sender of the message agreed that:

The company "shall not be liable for mistakes," etc., "whether happening by the negligence of its servants or otherwise, beyond the amount received for sending the same."

The case found the defendant negligent, and confidently resisting the plaintiff's claims because the plaintiff had agreed as above, not to claim in case of negligence. The result in that case need not and will not be questioned here. The reasoning there as to contracts of individuals attempting to evade or avoid the consequences of their own negligence was but a repetition of the wisdom of cases supporting the rule from earliest times, and reasserting the policy of the law independently of statute regulation, and it is not perceived that any recent legislation, federal or state, has been enacted transforming negligence into license, or creating a channel through which liability therefor may be avoided by contract, or otherwise permitting a person to take advantage of his own wrong. Young v. M. C. R. R., 113 Me. 113, 93 Atl. 48; Buckley v. B. & A. R. R., 113 Me. 164, 93 Atl. 65. It will be seen that the contract in suit differs from that in the Ayer Case, and the words limiting liability for negligence have a stipulation as to damages accompanying them beyond the charge for transmission. The decision in the Ayer Case was reached in 1887, and contained no reference to, and was not affected by, the Interstate Commerce Act of that year, for the reason that said act did not then relate to telegraph, telephone, and cable companies doing an interstate business. The rule and policy therein emphasized controlled procedure and practice in this state until June 18, 1910, when an amendment to the Interstate Commerce Act was passed. The portions applying here read:

"The provisions of this act shall apply to * * * telegraph, telephone, and cable companies (whether wire or wireless) engaged in sending messages from one state, territory, or district of the United States to any other state, territory, or district of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning and purpose of this act. * * *

"All charges made for any service rendered or to be rendered in the transportation of passengers or property and for the transmission of messages by telegraph, telephone, or...