Pepper v. W.U. Tel. Co.

• Decision Date: 07 May 1889
• Citation: 11 S.W. 783,87 Tenn. 554
• Parties: PEPPER et al. v. WESTERN UNION TEL. CO.
• Court: Tennessee Supreme Court

11 S.W. 783

87 Tenn. 554

PEPPER et al. v. WESTERN UNION TEL. CO.

Supreme Court of Tennessee.

May 7, 1889

Appeal from chancery court, Shelby county; B. M. ESTES, Chancellor.

Turley & Wright, for appellant.

Henry Craft, for appellees.

FOLKES J.

This is a suit by complainants to recover damages for a breach of a contract to deliver correctly a certain telegram intrusted to defendant as the owner and operator of a telegraph line. The facts necessary to a correct understanding of the case are as follows: On October 5, 1886, R. F. Bugg & Co., produce brokers at Birmingham, Ala., sent by defendant company to complainants, who were produce dealers at Memphis, this telegram: "Quote cribs loose, and strips packed." Thereupon complainants wrote out upon the usual printed blanks of the defendant company, and delivered to the proper agent of the defendant for transmission, this reply addressed to Bugg & Co., at Birmingham: "Car cribs six sixty, c. a. f., prompt." The word "cribs" meant in the meat trade clear ribs, and "c. a. f." meant cost and freight. These terms were well understood in the trade and by the defendant. This telegram, as delivered by the company to Bugg & Co., read "six thirty," instead of "six sixty," being in other respects correct. Thereupon Bugg & Co. ordered a car-load of the meat amounting to 25,000 pounds. Complainants shipped the meat and drew on Bugg & Co. for $1,650, the price of the meat at "six sixty." Bugg & Co. refused to pay the draft relying on the telegram as received by them; and complainants accepted of them $1,575, the value of the meat at the price of "six thirty," making a loss to complainants of $75. Complainants at once notified the company of the mistake, and that the same had entailed upon them the loss of $75, and demanded payment of this sum, which the company declined to make. The defendant, in its answer, says it is not liable-- Firstly. Because the telegram in which the error occurred fails to give any idea as to its true meaning, whereby defendant was unable to judge of its importance; that it can only be held liable for damages which it might reasonably have contemplated as a result of its error; "that it is not responsible for results flowing from a mistake in the transmission of such cipher dispatches." Secondly. That, the dispatch not being repeated, their liability is, by the terms of the printed blank, which is the contract, limited to the cost of the telegram. Thirdly. That in no event are they liable for the difference in the value of the car-load of meat at the price contained in the telegram as received by it, and the price in the message as delivered by it to Bugg & Co., i. e., between $6.60 per 100 pounds, and $6.30; claiming that complainants could have recovered their meat from Bugg & Co. as it was shipped in consequence of said mistake. There was judgment for the complainants for the sum of $75, with interest from the date of the delivery of the meat. Defendant has appealed, assigning errors.

It is unnecessary for us to determine what is the measure of damages for error in the transmission of a telegram written in cipher,--a question upon which the authorities are not in harmony, and one where there are very many nice distinctions and refinements. The telegram before us is in no sense in cipher. It is an abbreviation merely, and, from the proof in the cause, an abbreviation known to the company. It fully apprised the company that a proposition to sell clear rib meat in car-load lots at $6.60 per 100 pounds was made, and the company could reasonably have anticipated that if the proposition was accepted the writer of the message would forward the goods in expectation of such price, and that his loss, if there was an error in delivering the message by the negligence of the company, would be the difference between the real value of the goods and the price at which the sender, in the exercise of reasonable prudence, might be able to dispose of them when rejected by the proposed purchaser in consequence of the error. In other words, the company knew that carelessness or mistake in the delivery of the message might expose the sender to pecuniary loss, the amount or extent of which it was not necessary for it to know. "It is only necessary that the damages be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract,--that is, such as might naturally be expected to follow its violation;" and it was only necessary for the company to know that the telegram related to a matter of business which, if improperly transmitted, might lead to pecuniary loss upon the basis above suggested, to be increased or diminished according to the particular circumstances of the case, and to be determined upon the rule of compensation to the party injured.

The second matter of defense set up in the answer, predicated upon the terms of the special contract contained in the printed blanks of the company, need not be noticed, since the case of Marr v. Telegraph Co., 1 Pickle, 529, 3 S.W. 496, which settles, in this state, in accord with the overwhelming weight of authority, that such stipulations will not avail the company where the damage has resulted from the negligence of its agents or officers. The mistake or error here is clearly shown to have been occasioned by such negligence. Indeed, learned counsel for the company have not made any contention to the contrary in this court.

This brings us to the consideration of the third and serious ground of defense,--the measure of damages in this particular case, The contention of the counsel for complainants is--and such was the view of the learned chancellor-- that the company was the agent of the complainants as the sender of the telegram, and that the complainants were therefore bound to let Bugg & Co. have the goods at $6.30, the price erroneously named in the dispatch as delivered; and that the loss must be measured by the difference between the price at which they were willing and expected to sell and the price which in consequence of the error of such agent they were compelled to sell. In our opinion this contention cannot be maintained, either upon principle or authority. The minds of the party who sends a message in certain words and the party who receives the message in entirely different words have never met. Neither can therefore be bound the one to the other, unless the mere fact of employment of the telegraph company, as the instrument of communication, makes the latter the agent of the sender. Upon what principle can it be said such an agency arises? The telegraph company is in no sense a private agent. It is clothed by the state with certain privileges; it is allowed to exercise the right of eminent domain. In exchange for such franchises it is onerated with certain duties, one of which is the obligation to accept, and transmit over its wires, all messages delivered to it for that purpose. The parties who resort to this instrumentality have no other means of obtaining the benefits of rapid communication, which is the price of its existence. They have no opportunity and no power to supervise or direct the manner or means which the company use in the discharge of their duties to the public in the transmission of messages for particular individuals. They can only deliver to the company a legible copy of what they wish communicated, with no expectation that such paper is to be carried to the party addressed; and their connection with the company there and then ceases. They have contracted with the company to transmit the words of the message to the party addressed through its own agents, and with its own means. The party receiving the message knows that he is not obtaining any communication direct from the sender, but that he is receiving what the company has taken, and changed the form of, from the paper on which it was written, transmitted by electricity over the wires of the company, and reduced to writing at its destination by an agent of the company; and that it only represents what was written by the sender, in the event that there has been no imperfection in the mechanism of the company, nor negligence in the servants of the company. Knowing the scope of the employment and the methods of transmission, the receiver should be held to know that the sender is bound by the contents of the telegram as received only so far as it is a faithful reproduction of what it sent. He knows, furthermore, that if he acts on the telegram, and it should turn out to have been altered by the negligence or wrongful act of the company, the latter is liable to him for such injury as he may sustain thereby Ordinarily there is no relation of master and servant between the sender of the telegram and the company. Where this relationship does not exist the principal is not responsible for the torts of the agent, and the negligent delivery of an altered message, when acted on by the receiver to his detriment, is a tort for which the telegraph company alone is responsible. The company retaining exclusive control of the manner of performance, and of its own employes and instrumentalities, the sender of the message being absolutely without voice in the matter, it seems to us that the position of the company to its employer is that of "independent contractor," as defined and understood in the well-settled class of cases where the employer is held to be not responsible for the negligence of the contractor in the performance of his work or undertaking. The many and marked differences between the employment of such companies to transmit a dispatch and the employment of a private person to deliver a verbal message, are so manifest that we cannot assume the liability of the sender in the first instance, from his...