McLeod v. Pacific States Telephone & Telegraph Co.

• Decision Date: 26 May 1908
• Citation: 95 P. 1009,52 Or. 22
• Parties: McLEOD v. PACIFIC STATES TELEPHONE & TELEGRAPH CO.
• Court: Oregon Supreme Court

95 P. 1009

52 Or. 22

McLEOD v. PACIFIC STATES TELEPHONE & TELEGRAPH CO.

Supreme Court of Oregon

May 26, 1908

On petition for rehearing. Denied.

For former opinion, see 94 P. 568.

EAKIN, J.

The motion for rehearing does not raise any new or different questions from those submitted at the original argument and passed upon by the court, but it questions the correctness of the conclusions reached. The point emphasized by the motion is that the company should not be held liable in damages to the addressee for negligence in the transmission or delivery of a message, unless the addressee was the primary beneficiary therein. In considering the liability of telephone companies, we are almost exclusively confined for precedents to decisions relating to telegraph companies, and so far as the courts and text-writers have expressed themselves they treat them as similar, in their general features, both as to duties and liabilities. Anderson's Law Dictionary says that telegraph includes any apparatus for transmitting messages or other communications by means of electric signals. Under "telephone" he says "A telephone is a telegraph." See, also, Jones Teleg. & Teleph. Cos. c. 1; Croswell, Elec. §§ 13-18; and note to Cent. Union Teleph. Co. v. Falley, 118 Ind 194, 19 N.E. 604, 10 Am.St.Rep. 114, 128.

For the purpose of the consideration of this motion it may be taken as conceded that the telephone company is responsible to the addressee of a message where he is the primary beneficiary in it, if the company is advised of that fact, either by the terms of the message itself or otherwise ( Frazier v. West. Union Tel. Co., 45 Or. 414, 78 P 330, 67 L.R.A. 319); and the only question open for discussion is whether it is liable to the addressee in case he is not the primary beneficiary, but has a beneficial interest in it. The cases are practically uniform in holding that the remedy of the addressee of a message is in tort except in cases where he is the principal of the sender ( Postal Tel. Cable Co. v. Ford, 117 Ala. 672, 23 So. 684), though some base recovery upon other grounds. See a discussion of this subject in Croswell, Elec. §§ 456, 457, 460, et seq., where the cases are cited. The only person having contractual relations with the company is the sender, or a person for whose benefit he makes the contract, and in the great majority of cases the addressee cannot rely upon any contractual relation. The basis of his right is ex delicto, namely, that the company, in the exercise of a public franchise, and in the performance of duties of a public character incident thereto, is liable to the public for the performance of those duties with reasonable care and diligence; and in such a case the company is responsible to the addressee for negligence in the transmission and delivery of a message it has contracted to deliver to him. Croswell, Elec. §§ 460-462; Jones, Teleg. & Teleph. Cos. § 557; Cent. Union Tel. Co. v. Swoveland, 14 Ind.App. 341, 42 N.E. 1035; Hellams v. West. Union Tel. Co., 70 S.C. 83, 49 S.E. 12; Green v. West. Union Tel. Co., 135 N.C. 489, 49 S.E. 165, 67 L.R.A. 985, 103 Am.St.Rep. 955; New York & W. Ptg. Tel. Co. v. Dryburg, 35 Pa. 298, 78 Am.Dec. 338; Smith v. West. Union Tel. Co., 83 Ky. 104, 4 Am.St.Rep. 126; West. Union Tel. Co. v. Dubois, 128 Ill. 248, 21 N.E. 4, 15 Am.St.Rep. 109; West. Union Tel. Co. v. Longwill, 5 N.M. 308, 21 P. 339; McPeek v. West. Union Tel. Co., 107 Iowa, 356, 78 N.W. 63, 43 L.R.A. 214, 70 Am.St.Rep. 205. The defendant's liability upon the contract is limited to the person for whose benefit the contract is made; but, where the liability is ex delicto, it may extend to any one who is injured by the negligence of the company, and therefore there may be a liability to different individuals for the same tort. Gray, Comm. by Teleg. § 67, and Croswell, Elec.§ 457, quoted in Frazier v. Northwestern Teleg. Co., 45 Or. 414, 419, 78 P. 330, 67 L.R.A. 319, to the effect that the right of the addressee of a message to recover for a breach of the contract will be confined to cases where he is the sole beneficiary thereof, are discussing the remedy on the contract, and not the remedy in cases of tort or liability for negligence. Croswell, at section 457, just preceding the language quoted in Frazier v. Nothwestern Teleg. Co., supra, and as the basis of that language, says: "This same class of cases is also sustained by the courts on the principle which is law in a few states that a person for whose benefit a contract is made may maintain an action to compel the performance of it"--while at section 471 he says it is well settled in the United States that the addressee of a message may sue in tort for negligence in the transmission or delivery of the message; his action being based upon the default of the telegraph company in the performance of its duty at common law. Gray denies this remedy at section 66, but he is not supported by the authorities in this country. To create a liability upon the company in favor of the addressee, who is not the person for whose benefit the contract is made, for negligence in the transmission and delivery of a message, that is, to create a liability in tort, it is necessary that the addressee have some interest in the message, and that such interest be disclosed by the terms of the message, or otherwise communicated to the company. West. Union Tel. Co. v. Kirkpatrick, 76 Tex. 217, 13 S.W. 70, 18 Am.St.Rep. 37; West. Union Tel. Co. v. Schriver et al., 141 F. 538, 72 C.C.A. 596, 4 L.R.A. (N.S.) 678.

It was urged in some of the cases we have examined that, the remedy being in tort for breach of a public duty, notice to the company of the plaintiff's interest in the message would be unnecessary, and recovery might be had for any damage suffered. This position is taken by the editors of the Columbia L.Rev. vol. 5, p. 170, in referring to the case of Frazier v. Northwestern Teleg. Co., 45 Or. 414, 78 P. 330, 67 L.R.A. 319, and applies the general rule as to...