Lundgren v. Western Union Telegraph Company

• Decision Date: 27 May 1955
• Docket Number: Civ. No. 7538.
• Citation: 132 F. Supp. 933
• Parties: James LUNDGREN d/b/a Pacific Construction Company, Plaintiff, v. The WESTERN UNION TELEGRAPH COMPANY, Defendant.
• Court: U.S. District Court — District of Oregon

132 F. Supp. 933

James LUNDGREN d/b/a Pacific Construction Company, Plaintiff, v. The WESTERN UNION TELEGRAPH COMPANY, Defendant.

Civ. No. 7538.

United States District Court D. Oregon.

May 27, 1955.

Seymour L. Coblens, Portland, Or., for plaintiff.

Edgar Freed, Portland, Or., for defendant.

SOLOMON, District Judge.

Plaintiff filed an action for damages against Western Union, claiming that by reason of the latter's negligent failure to deliver a telegram by a particular time he has suffered damages in the sum of $16,423.58. The defendant denies any negligence or breach of a specific agreement to deliver this message. As a special defense, the defendant alleges that under the terms of defendant's standard message contract, printed on the back of all telegraph form blanks and filed with the Federal Communications Commission as part of its approved tariff regulations, the limits of liability for unrepeated messages is $500; and for repeated messages $5,000 unless specially valued.

By the pretrial order it was agreed that the message alleged by plaintiff to have been delayed in delivery was telephoned to the defendant and was not sent on a telegraph blank containing this as well as other standard provisions. Plaintiff concedes that if the message had been sent on a blank of Western Union, he would be precluded from recovery except on the basis set forth in such printed provisions. The question now before the court is whether plaintiff, who telephoned his message to Western Union for transmittal and who had no knowledge of such limitations, is bound by the limitations of legally approved rate provisions.

It has been long settled that senders of a message are bound as a matter of law by the tariff limitations of liability without regard to their knowledge of or assent to these limitations. Western Union Telegraph Company v. Esteve Bros. & Co., 1921, 256 U.S. 566, 41 S.Ct. 584, 586, 65 L.Ed. 1094. In explaining the rationale of this decision, Mr. Justice Brandeis stated:

"The limitation of liability was an inherent part of the rate. The company could no more depart from it than it could depart from the amount charged for the service rendered.

"The act of 1910 introduced a new principle into the legal relations of the telegraph companies with their patrons which dominated and modified the principles previously governing them. Before the act the companies had a common law liability from which they might or might not extricate themselves according to

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