Pegram v. Western Union Telegraph Co.

• Decision Date: 16 May 1887
• Citation: 2 S.E. 256,97 N.C. 57
• Parties: PEGRAM v. WESTERN UNION TEL. CO.
• Court: North Carolina Supreme Court

2 S.E. 256

97 N.C. 57

PEGRAM v. WESTERN UNION TEL. CO.

Supreme Court of North Carolina

May 16, 1887

Appeal from superior court, Mecklenburg county.

A stock broker sent a telegram containing 14 words. The message was written on the usual form containing conditions limiting the liability of the company for errors in transmission. The message delivered contained only 13 words, and the sender suffered pecuniary loss in consequence. The testimony of the sending operator that he checked and transmitted 14 words that the receiving operator was not a competent man for his position, and that by the exercise of ordinary care the mistake could have been avoided, held evidence of gross negligence on the part of the telegraph company, which ought to have gone to the jury.

Burwell & Walker and W. P. Bynum, for plaintiff.

Batchelor & Devereux, for defendant.

DAVIS J.

This was a civil action tried before MONTGOMERY, J., at the November special term, 1886, of the superior court of Mecklenburg county. The defendant is a duly incorporated company, whose business it is to transmit messages over its lines for pay. The plaintiff was engaged in the city of Charlotte in the business of buying and selling railroad and other stocks for profit, and one William C. Sedden was engaged in similar business, under the firm name of William C. Sedden & Co., in the city of Richmond, Virginia. On the fourteenth day of February, 1881, the plaintiff delivered to the defendant, at its office in Charlotte, for transmission over its line to the said William Sedden in Richmond a message in the following words: "Party offers one hundred shares C. C. & A. at forty-three. Answer quick." The charges for said message were paid, and the defendant company undertook and contracted, in consideration therefor to transmit it. In response to the telegram so sent to the said Sedden, he caused to be transmitted to the plaintiff over the same line, on the same day, a telegram in the following words, to-wit: "Will take one hundred shares. Draw at sight, with stock attached, if wish." The telegram delivered by the defendant company to W. C. Sedden at Richmond was not the one sent by the plaintiff, but was in the following words, to-wit: "Party offers one hundred shares C. C. & A. at forty. Answer quick." The plaintiff alleges that in consequence of the offer of the stock at $40 per share, as stated in the telegram delivered to the said Sedden in Richmond, he immediately sold the amount of said stock in Richmond at the price of $41.75 per share, which was then the market price of the stock in that city, but in order to deliver the same he had to purchase other stock of the said railroad at that price or more, and that by reason of the said error in the price, and the negligence and carelessness of the defendant, the plaintiff was compelled to pay to the said Sedden the difference between 100 shares of said stock at $40 per share, and the same stock at $41.75 per share, and other costs and damages to the amount of $250. For a second cause of action he alleges that the mistake in the transmission of the message was owing to the gross and willful negligence and carelessness of the defendant, whereby the loss and damage were sustained for the recovery of which this action is brought.

The defendant admits the receipt and transmission of the message as alleged, but says that the price charged was only 62 cents, being the sum charged for messages of that length, not required to be repeated to prevent mistakes, and says that the plaintiff was distinctly notified that mistakes were liable to occur in the transmission of messages, and that to guard against such mistakes it was necessary to repeat the message for comparison, and that the charge for so repeating was an addition of one-half to the regular charge; that the plaintiff was also distinctly notified that the defendant company would not be liable for failure in the correct transmission and delivery of said message unless the same was so repeated; that the plaintiff elected not to pay the additional toll or charge, but expressly agreed with the defendant that, in consideration of its sending the said message for the reduced toll, it should not be liable for any mistake or delay or for non-delivery of such unrepeated message, whether happening by the negligence of its servants or otherwise, beyond the amount...