Kerns v. Western Union Telegraph Co.

Decision Date05 November 1917
Docket NumberNo. 12633.,12633.
Citation198 S.W. 1132
PartiesKERNS v. WESTERN UNION TELEGRAPH CO.
CourtMissouri Court of Appeals

Action by Alexander V. Kerns against the Western Union Telegraph Company for errors in a telegram. Judgment for plaintiff, and defendant brings error. Reversed.

Fred S. Hudson, of Kansas City, for plaintiff in error. Weatherby & Frank, of Kirksville, for defendant in error.

TRIMBLE, J.

Defendant in error, Kerns, brought this action to recover damages caused by an error in the transmission of a telegram sent to him at Charles City, Iowa, from the commission house of Langenberg Bros. Company at St. Louis, Mo., January 11, 1915, concerning the market price of timothy seed which the commission house had received from plaintiff to be sold. The telegram as delivered to the telegraph company by the commission house read "Best bid on timothy six eighty" but as delivered to plaintiff the message read "Best bid on timothy six eight." Kerns refused to authorize a sale at what he thought was $6.08, but would have directed a sale had he known that the real offer was $6.80. Two days later he discovered that there had been an error in the transmission of the telegram. By that time, however, the market went off 10 cents per hundred. He declined to sell at this lower figure but held the seed until March 30th following, hoping the market would recover, but as it continued to decline he sold the seed on said last-named date at from $5.26 to $5.41. On April 16, 1915, Kern filed with the telegraph company his claim for damages and on the same day brought suit. The case was submitted to the court sitting as a jury, and judgment was rendered for the full amount claimed. Thereupon the telegraph company obtained a writ of error and brought the controversy to this court.

The pleadings and the facts show that the telegram was an unrepeated interstate message. Consequently the case is to be decided, and the question of the liability of the telegraph company determined, in the light of federal statutes and rules of decision. Poor v. Western Union Telegraph Company, 196 S. W. 28, and cases cited therein. And under federal rules a wide effect is given to provisions in the contract by which a message is transmitted. These provisions are usually in the form of terms printed on the back of the telegram blank used by the sender who agrees on the face of the message that it shall be sent subject to those terms, and such is the case in the message here under consideration.

Among a number of provisions in the usual form on the back of this telegram is one providing that the company will not be liable in any case unless a claim for damages is presented in writing within 60 days after the telegram is filed with the company for transmission. As no claim for damages was presented until long after this time had expired, the company contends that it is not liable.

It is urged by the other side that the provisions on the back of the telegram cannot be considered by us for the reason that they were not introduced in evidence and hence are not properly in the record. We cannot agree with this contention. In the first place, the company's answer set out the above-mentioned terms and provisions and copied in full the provision as to notice of claim being required to be filed within 60...

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10 cases
  • Western Union Telegraph Company v. Arkadelphia Milling Company
    • United States
    • Arkansas Supreme Court
    • January 8, 1923
  • Western Union Telegraph Co. v. Lambert
    • United States
    • Mississippi Supreme Court
    • February 1, 1926
    ... ... concerned and entirely governs recovery either by sendee or ... by sender. This court has so decided in Clement v ... W. U. Tel. Co., 27 So. 602, and W. U. Tel ... Co. v. Bourn, 84 So. 143. See, also, ... Jacobs v. W. U. Tel. Co., 196 S.W. 31 ... (Kans.) ; Kerns v. W. U. Tel. Co., ... 198 S.W. 1132; Gardner v. W. U. Tel. Co., ... 231 F. 405; [141 Miss. 582] Western Union v ... Esteve Bros., 65 L.Ed. 1094; Railway Co. v ... Blish Milling Co., 60 L.Ed. 948; Western ... Union v. Czizek, 68 L.Ed. 682 ... G. Wood ... Magee, Geo. N. Magee and ... ...
  • Blamberg Bros., Inc. v. W. U. Tel. Co.
    • United States
    • Maryland Court of Appeals
    • June 9, 1927
    ...v. Esteve Bros., 256 U.S. 571, 41 S.Ct. 584, 65 L.Ed. 1094; Davis v. Henderson, 266 U.S. 92, 45 S.Ct. 24, 69 L.Ed. 182; Kerns v. W. U. Tel. Co. (Mo. App.) 198 S.W. 1132; W. U. Tel. Co. v. Woods (Tex. Civ. App.) 266 179; Williams v. W. U. Tel. Co., 218 Mo.App. 364, 275 S.W. 570; Stone v. Pos......
  • Williams v. Western Union Telegraph Co.
    • United States
    • Missouri Court of Appeals
    • September 1, 1925
    ...transmission, but denied that such affected him as addressee, he cannot maintain that such condition is not in the record. Kerns v. Western Union, 198 S.W. 1132. (7) negligence of the telegraph company must have been the sole cause of respondent assembling the calves and if that expense wou......
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