Jacobs v. Western Union Telegraph Co.

• Decision Date: 22 February 1917
• Citation: Jacobs v. Western Union Telegraph Co., 196 Mo. App. 300, 196 S.W. 31 (Kan. App. 1917)
• Parties: HARRY L. JACOBS, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant
• Court: Kansas Court of Appeals

196 S.W. 31

196 Mo.App. 300

HARRY L. JACOBS, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

February 22, 1917

Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.

AFFIRMED (conditionally).

New Miller, Camack & Winger, Albert T. Benedict, and S. J McCullough for appellant.

Ringolsky & Friedman and J. F. Aylward for respondent.

OPINION

ELLISON, P. J.

Plaintiff's action is to recover damages for wrongful negligence in defendant's failure to deliver a telegram. He obtained a judgment in the circuit court for two hundred and eighty dollars.

The telegram was what is known as a "night letter" and was in the following words:

"Cincinnati, Ohio, July 21, 1913.

To Harry L. Jacobs, Attorney,

Kansas City, Missouri.

Two suits involving Iowa interstate liquor shipments will be heard at Ottumwa next Thursday. One suit is against United States Express Company to enjoin it from delivering shipments. In the other suit consignees for personal use are defending against seizures. Counsel will have preliminary conference at Ottumwa Wednesday. I expect to attend.

Paid. LAWRENCE MAXWELL."

The telegram was written on one of defendant's blanks upon which there was printed matter limiting liability. Among other limitations was one that defendant should not be "liable for mistakes or delays in the transmission or delivery, or for nondelivery for any unrepeated message, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery or nondelivery of any repeated message, beyond fifty times the amount received for sending the same, unless specially valued; . . . In any event the company shall not be liable for damages for any" such mistakes or delays "whether caused by the negligence of its servants, or otherwise, beyond the sum of fifty dollars, at which amount this message is hereby valued, unless a greater value is stated in writing," and an additional sum paid on such value.

It was shown that this telegram was not delivered to plaintiff until the expiration of eleven days from its date and ten days after its receipt at Kansas City. The only excuse offered for delayed delivery was that the city directory only showed a "Harry Jacobs" and not a "Harry L. Jacobs" as addressed on the message. It was further shown that plaintiff had been employed by Dancinger Brothers wholesale liquor dealers in Kansas City to attend the trial of the two suits mentioned in the telegram. Lawrence Maxwell, the sender of the message, was attorney for the wholesale liquor dealers association and plaintiff had arranged with him that he would keep plaintiff posted regarding the suits mentioned in the telegram. In consequence of the nondelivery of the telegram plaintiff did not attend the trials and he thereby lost his employment by Dancinger Brothers and lost the fee he should have otherwise received from them.

The issues to be considered are whether the failure to deliver the telegram was the proximate cause of plaintiff's loss; and whether the limitation clause above referred to as appearing on the back of the telegram are applicable to the facts. Other things were matters of dispute at the trial, among them, whether plaintiff had a contract with Dancinger Brothers; but there was evidence tending to show that he had, and the verdict has so determined it, and we think rightly determined it, in plaintiff's favor.

It is insisted that the failure to deliver the telegram was not the proximate cause of plaintiff's loss in that such loss could not reasonably have been within the contemplation of the parties. It may be true that the character of loss sustained by plaintiff was not within the contemplation of the sender and the company, but where the action is ex delicto (as here) covering a breach of public duty of which the sendee has a right to complain, any damage to him is properly allowed that flows directly and in the usual course of things from the breach of duty. In this case plaintiff's loss of a fee was not remote, it resulted directly, and in the usual course of such things, from defendant's wrongful act. [Kerns & Lorton v. Telegraph Co., 170 Mo.App. 642, 157 S.W. 106; Fitch v. Telegraph Co., 150 Mo.App. 149, 130 S.W. 44; Tippin v. Telegraph Co., 185 S.W. 539; Western Union Tel. Co. v. Lawson, 182 F. 369.] We have been cited to Hadley v. Baxendale, 9 Exch. 341 (s. c. 23 L. J. Ex. 179), as though that case restricted damages to such as were within the contemplation of the parties as probably to be the result of a breach. The case does not so restrict the rule. even in actions ex contractu. It is said in that case that the damages must be such as were within the contemplation of the parties; but that is only half of what was said. The language was this: "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e. according to the usual course of things, from such breach of contract itself or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it." So that the rule, as a whole, was formulated upon the idea that though certain damages might be of such character that they could not be reasonably supposed to have been contemplated at the making of the contract, yet if they were such as could naturally and reasonably be considered, according to the usual course of things, to result from a breach, the party at fault would be liable for them.

But the case before us is not between the immediate parties to the contract. It is ex delicto, based upon a breach of duty where the basis of recovery, in common with actions ex contractu, is the damage naturally and in the usual course of things, flowing from such violated duty.

It is suggested that the defendant had no notice that a loss of a fee would be suffered by plaintiff in case of delay in delivery. But in our opinion the face of the telegram itself discloses that such would be the natural result. The telegram was information to defendant that plaintiff was an attorney and that he was being informed of the date when two suits would be heard and that there would be a conference of attorneys interested. It must have been known to defendant that attorneys receive compensation for services rendered and that they will not receive compensation if they fail to render the service. [West. Union Tel. Co. v. Short, 53 Ark. 434, 444, 14 S.W. 649.] The subject of information disclosed by face of telegram is discussed in Kerns & Lorton v. Telegraph Co., 174 Mo.App. 435, 440, 160 S.W. 556. The case is wholly unlike Melson v. W. U. Tel. Co., 72 Mo.App. 111, where the message was simply: "If possible come to Shelbina in the morning," and it was held that this conveyed no information, or suggestion, to the telegraph company that it was contemplated by the sender to sell a horse upon which the sendee had a lien.

This brings us to that branch of the case relating to the limitation of defendant's liability to which we have already referred. The telegram being sent from Cincinnati, Ohio, to Kansas City, Missouri, was a transaction in interstate commerce and must be governed by the Federal law as interpreted by the Federal decisions. Congress, under its interstate commerce power, has assumed control of telegraph companies operating between the States. [36 Stat. at L. 544, chap. 309; F. Stat. Anno. 1912, Supp. Vol. 1, p. 111.] Federal laws and Federal decisions have thereby become the sole controlling influence in the determination of all litigation in respect thereto. They have superseded all State regulation and rule of decision wherever in conflict. [Western Union Tel. Co. v. Milling Co., 218 U.S. 406, 54 L.Ed. 1088, 31 S.Ct. 59; Western Union Tel. Co. v. Pendleton, 122 U.S. 347, 30 L.Ed. 1187, 7 S.Ct. 1126.] "A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods," (Telegraph Co. v. Texas, 105 U.S. 460, 26 L.Ed. 1067), and therefore the many announcements of the exclusive control of the decisions of the United States Supreme Court relating to interstate shipments, and interstate liability acts to servants engaged in interstate commerce, are applicable. [Western Union Tel. Co. v. Bank, 156 P. 1175; Western Union Tel. Co. v. Bilisoly, 116 Va. 562, 82 S.E. 91; Haskell Imp. & Seed Co. v. Postal Tel. Co., 114 Me. 277, 96 A. 219.]

The Federal courts have ruled that stipulations set out on the back of telegraph blanks concerning repeated messages and lessening the amount of liability for delays, misdelivery and incorrect transmission, are valid. [Primrose v. Western Union Tel. Co., 154 U.S. 1, 38 L.Ed. 883, 14 S.Ct. 1098.] But we think there is no ground in this case upon which to apply the limitation to the price of the message on account of it not having been repeated; for the reason that the mischief committed here was not in the transmission. It was correctly sent and therefore to repeat it, would not have had any tendency to lessen the ten days' delay in delivery. The message was in every way right; the wrong was in carelessness in seeking plaintiff and failing to deliver to him. There was nothing in the message that caused the delay, or that a repeating of transmission would have cured. To repeat a message will correct any error in transmission, but how it could have any influence or application to failure to deliver to the sendee is difficult to understand. In putting a message on and taking it off the wire twice the chances of mistake...