Parks v. Western Union Telegraph Co.

• Decision Date: 06 March 1922
• Docket Number: 2476.
• Citation: 204 P. 884,45 Nev. 411
• Parties: PARKS v. WESTERN UNION TELEGRAPH CO.
• Court: Nevada Supreme Court

204 P. 884

45 Nev. 411

PARKS v. WESTERN UNION TELEGRAPH CO.

No. 2476.

Supreme Court of Nevada

March 6, 1922

Appeal from District Court, Washoe County; J. Emmet Walsh, Judge.

On rehearing. Former opinion (197 P. 580) adhered to.

Sardis Summerfield, of Reno, for appellant.

Brown & Belford, of Reno, for respondent.

SANDERS C.J.

Rehearings are not granted as a matter of right, and are not allowed for the purpose of reargument, unless there is reasonable probability that the court may have arrived at an erroneous conclusion, or overlooked some important question, which was necessary to be determined in order to arrive at a full and proper understanding of the case. State v. Woodbury, 17 Nev. 353, 30 P. 1006.

The judgment herein was reversed upon a question of pleading and practice, not heretofore adjudicated by this court, and not embraced in the briefs or pointed out on the oral argument. The question involved is of general importance, and serious doubt exists as to the correctness of the decision. We have therefore listened, not without profit, to a reargument of the entire case by counsel for respondent, counsel for appellant not having availed himself of the privilege. In his reply, however, to the petition for reargument, he expresses a passive interest in the question of pleading decided, and reiterates that he made an earnest effort to draw a clean-cut expression of the court's opinion upon a much-involved question, which may be stated as follows:

In an action brought to recover unliquidated damages from a telegraph company for its alleged gross negligence in failing to transmit and deliver an interstate, unrepeated message written upon one of the company's usual blank forms, when at the time of its delivery and acceptance the sender informed the defendant that he desired its prompt transmission and delivery regardless of expense, and at the time the defendant orally agreed, for and in consideration of the sum of $1.28, which sum was then and there paid, to promptly transmit and deliver the message to the addressee therein, provided he could be found by the exercise of reasonable diligence, can the addressee, in an action brought by him to recover $3,000 as damages for the injury sustained for the failure of the defendant to perform its oral contract with the sender, recover as damages any more than the tariff for such a message as filed by the defendant with the Interstate Commerce Commission pursuant to an act of Congress of June 18, 1910, which extends the Act to Regulate Commerce to include telegraph companies (U S. Stats. 36, p. 539; 544 U.S. Comp. St. § 8563); it being understood that its tariff for such unrepeated message is $1.28? The court declined to answer the question, much to the surprise, disappointment and dissatisfaction of the parties. The procedure adopted to bring the question before us invited the result.

I shall not recapitulate the pleadings, as they are sufficiently set out in the original opinion (197 P. 580), which must however, be kept in mind, and at all times thoroughly understood.

The complaint in the action gives the impression of being a studied effort on the part of the complainant to bring his case within the rules laid down by certain decisions and without the rules laid down in others. It is unusual in this: The cause of action is founded on an oral contract, made by the sender of a telegraphic dispatch with the agent of the defendant company residing in San Francisco, whereby the agent agreed (as counsel say, "guaranteed"), for the consideration of the sum of $1.28, then paid, to promptly transmit and deliver to the addressee the dispatch, made a part of the complaint. It is made to appear that the message was urgent and important. Mackay v. Western Union Telegraph Co., 16 Nev. 222. The complaint, however, does not contain any allegation that the price paid was the usual charge for such a message (37 Cyc. 1722), thus leaving it to be inferred that there was something in the transaction to distinguish it from the delivery and acceptance of a message to be transmitted in the ordinary course of the defendant's business; in other words, that the defendant, in view of the understanding between the parties, for the consideration paid, insured the prompt transmission and delivery of the message. Western Union Telegraph Co. v. Lange et al., 248 F. 663, 160 C. C. A. 556.

The denials contained in the answer are purely hypothetical in their nature. The answer admits the delivery of the message to the defendant, and states:

"Except as herein specifically admitted, defendant, upon information and belief, denies each and all of the matters and allegations contained in paragraph 6 of the complaint."

It admits the delivery of the message, but denies, upon its information and belief, the contract incident to its delivery. Why or how the defendant could deny the contract upon information and belief and yet admit positively the delivery of the message is inexplicable. The making of the contract was certainly presumptively within the knowledge of the defendant. In Curtis v. Richards, 9 Cal. 33, quoted with approval in Pom. Rem., sec. 641, it is held that if the facts alleged are presumptively within the knowledge of the defendant, he must deny positively, and a denial of information or belief will be treated as an evasion.

Cases may, and do frequently, arise, as where the facts are not within the personal knowledge of the defendant, in which he may answer according to his information and belief. To make a defendant admit something positively, which he does not know to be the fact, would be an injustice. Hence the rule laid down in Brown v. Ryckman, 12 How. Prac. 313, is cited frequently, that a defendant may often be in the position, under the present system of pleading, of having no other than a hypothetical form of placing his defense before the court. Such, however, is not the case here. We mention this to accentuate what immediately follows. The defense comes along and starts off with this language:

"Further answering said complaint, and for a separate and partial defense, plaintiff (defendant) alleges:

(1) That, if there ever was delivered to this plaintiff (defendant) a message such as that referred to and described in paragraph 6 of the complaint, such message was delivered to and accepted by the defendant subject to the terms of a certain contract in writing. * * *"

This being the true status of the pleadings, we took the position in our original opinion that the defense was intended to serve the purpose of a plea in confession and avoidance, and we do not understand counsel upon reargument to say that it is not. We had thought no rule to be better established than that where an answer seeks to avoid the complaint by new matter it must confess directly or by implication that, but for the avoidance contained in it, the action could be maintained. Testing the defense by this standard, we held it to be defective. In so doing we did not lay down the rule that denials and defenses of confession and avoidance are necessarily inconsistent, or that a...