Reed v. Western Union Telegraph Company
| Citation | 37 S.W. 904,135 Mo. 661 |
| Parties | Reed et al. v. Western Union Telegraph Company, Appellant |
| Decision Date | 20 November 1896 |
| Court | United States State Supreme Court of Missouri |
Appeal from Jackson Circuit Court. -- Hon. J. W. Henry, Judge.
Affirmed.
Karnes Holmes & Krauthoff for appellant.
(1) The court erred in admitting in evidence the statute of the state of Iowa, and Mr. Stiles' oral testimony as to the unwritten law of that state relative to the liability of telegraph companies; and also erred in giving the third fourth and fifth instructions on behalf of the plaintiffs. The telegram in question was sent from Cedar Rapids, Iowa, to Kansas City, Missouri. It was, therefore, an interstate transaction, and not subject to the laws of the state of Iowa. Stanley v. Railroad, 100 Mo. 435; Railroad v. Sherwood, 19 S.W. 455; 84 Texas, 125; Otis v Railroad, 112 Mo. 622; W. U. Tel. Co. v. Pendleton, 122 U.S. 347. (2) It follows that the validity of the conditions under which the message in controversy was sent, must be determined by the rule or decision announced by the supreme court of Missouri, namely, that the provision limiting liability for errors and mistakes in unrepeated messages is valid. Wann v. W. U. Tel. Co., 37 Mo. 472, and cases cited; 2 Shearm. & Redf. on Neg., sec. 553, p. 405; Kiley v. W. U. Tel. Co., 109 N.Y. 231; W. U. Tel. Co. v. Stevenson, 128 Pa. St. 442; Thompson v. W. U. Tel. Co., 64 Wis. 531. (3) There was neither allegation nor proof of gross negligence on the part of the defendant, nor did the plaintiffs' instructions predicate their recovery upon the presence of this element. Some of those who differ with the supreme court of Missouri, and others upholding the validity of the stipulation in question, affect not to understand what is meant by the term gross negligence. But those who have examined the question have no difficulty in determining that the phrase is used in the sense of willful mistake or fraud. Ellis v. Am. Tel. Co., 13 Allen, 226; Redpath v. W. U. Tel. Co., 112 Mass. 71; Hart v. W. U. Tel. Co., 66 Cal. 579; Breese v. U. S. Tel. Co., 45 Barb. 274. Gross negligence is "when a man does something recognizing the duty of using care, and of set purpose abstains from using such care." Beven on Neg., p. 63 n. (4) The court erred in declaring the measure of damages in the plaintiff's first instruction, and in refusing the fourth, fifth, sixth, seventh and eight instructions for the defendant. First. The same rule prevails in actions against telegraph companies that governs the recovery of damages in ordinary cases; the damages must be limited strictly to those which are proximately caused by the negligence complained of, and can not include those which are remote. W. U. Tel. Co. v. Hall, 124 U.S. 444; Howard v. Stilwell Mfg. Co., 139 U.S. 199; Cahn v. W. U. Tel. Co., 48 F. 810. Second. A well established and eminently just rule imposes upon a party injured or exposed to danger of injury from the act of another, however wrongful, the duty to actively exert himself to take steps to avoid or lessen the injuries, and to make exertions and incur reasonable expenses to that end. Douglass v. Stephens, 18 Mo. 362; Fisher v. Goebel, 40 Mo. 475; Waters v. Brown, 44 Mo. 302; State ex rel. v. Powell, 44 Mo. 436; Haysler v. Owen, 61 Mo. 271; Eoff v. Clay, 9 Mo.App. 176; Harrison v. Railroad, 88 Mo. 625; Railroad v. McGrew, 104 Mo. 282; Alliance Trust Co. v. Stewart, 115 Mo. 236. (5) The court also erred in giving the sixth instruction for the plaintiffs. Cases justifying such a rule proceed in utter disregard of the propositions, that a telegraph company is not subject to the rules governing common carriers (Leonard v. N. Y. Tel. Co., 41 N.Y. 544), and that the limit of liability for negligence is that the defendant shall be under a duty to the plaintiffs. There must be a duty as well as a breach, and that duty must be one to the person sustaining a loss and not one to some other person. Roddy v. Railroad, 104 Mo. 234; Bank v. Ward, 100 U.S. 195; Railroad v. Lawton, 55 Ark. 428; Curtain v. Somerset, 140 Pa. St. 70; Kahl v. Love, 37 N. J. L. 5; Ward v. Fagin, 101 Mo. 669; Yarnell v. Railroad, 113 Mo. 570; Robbins v. Jones, 15 C. B. (N. S.) 221; O'Brien v. Capwell, 59 Barb. 497; Beven on Negl., pp. 337, 782, 783. (6) The person who employed the defendant, and as to whom it assumed a duty, was Hedges, who is conclusively held to have assented to the conditions of the contract under which the message was sent, and stood bound thereby. Hill v. Tel. Co., 85 Ga. 425; Grinnell v. Tel. Co., 113 Mass. 299; Gray on Tel., pp. 52, 53. (7) This court has placed the receiver's right of action (excluding statutory provisions without application to the interstate telegram at bar) purely upon the proposition that the contract was made by Hedges as the agent of plaintiffs, and for their benefit. Markel v. W. U. Tel. Co., 19 Mo.App. 80. 2 Shearm. & Redf. Negl., sec. 543. (8) So that the plaintiffs, by claiming the right to sue, occupy the position and are bound by the conditions which would control the agent who acted for them in employing the defendant. Ellis v. Harrison, 104 Mo. 270; Saunders v. McClintock, 46 Mo.App. 216. Ellis v. Am. Tel. Co., 13 Allen, 226; Aikin v. Tel. Co., 5 S.C. 358. (9) The court erred in allowing a recovery of interest. The damages claimed were $ 600 and the recovery was for $ 700, the difference being because of the peremptory instruction that if the jury found for the plaintiffs they should include interest in the assessment of damages. Railroad v. Estill, 147 U.S. 591, and cases cited.
Kagy & Bremermann for respondent.
(1) The Iowa statute is not violative of the federal constitution. Connell v. Tel. Co., 108 Mo. 459. Besides, this question was not raised in the trial court and can not now be considered. Morgan v. Joy, 121 Mo. 677; Stone v. Hunt, 114 Mo. 66. (2) This case is distinguishable from that of Primrose v. Tel. Co., 154 U.S. 1. In that case, first, the message was in cipher, second, it was not repeated, third, the company was not informed of its importance, and, fourth, the evidence showed only slight negligence. Here the message was not in cipher and it was ordered to be and was repeated and the company was fully informed of its importance. (3) The evidence in this case shows such negligence as amounts to a willful disregard of duty, or if there be such a thing, gross negligence. Birkett v. Tel. Co., 61 N.W. 645. (4) Where the verdict is manifestly for the right party on undisputed evidence there will be no reversal, and the court will not even examine the instructions nor reverse for errors which may have intervened. Bank v. Bank, 30 Mo.App. 271; Vaughan v. Daniels, 98 Mo. 230; Bank v. Armstrong, 92 Mo. 265.
This action is by a sendee or addressee of a commercial telegram against the telegraph company for negligence in its transmission whereby the plaintiff or sendee was misled into authorizing her agent to conclude a contract of sale of a tract of land for $ 1,300 when she believed she was obtaining $ 1,900 therefor.
Plaintiff's agent, Hedges, living in Cedar Rapids, Iowa, where her real estate was situated, delivered to the defendant telegraph company, to be transmitted to plaintiff living in Kansas City, Missouri, the following message:
The regular tariff rate was paid by Hedges.
This message when delivered was as follows:
It will be noted the offer was changed in transmission from thirteen hundred to nineteen hundred dollars.
After requesting the operator and agent of defendant at Kansas City to verify the message on account of its importance and having been informed by the operator that he had verified it and she could rely upon it, plaintiff, ignorant of the error in the message received, on the same day, sent Hedges this telegram:
Armed with this power of attorney Hedges, the agent, also ignorant of the mistake in his message to plaintiff, and supposing he was authorized to sell the lot for $ 1,300, received a part payment of the purchaser thereon and gave a written memorandum of the sale, agreeing to make the deed and deliver possession. On the twenty-seventh of May, 1889, plaintiff and her husband joined in the execution of a deed to the purchaser reciting a consideration of $ 1,900 and forwarded it to Hedges who received it on the twenty-ninth. When Hedges received the deed he thought possibly there was a mistake owing to the insertion of $ 1,900 instead of $ 1,300 and suggested to the purchaser that they wait until he could write plaintiff, but the purchaser, threatening a suit, he delivered the deed and accepted $ 1,300 which he remitted to plaintiff less his commission. Upon receiving the letter and being apprised for the first time of the mistake, plaintiff Mrs. Reed at once, and within the sixty days limited therefor, made claim for $ 600 damages which being refused by defendant, she commenced this action.
Defendant offered no evidence whatever to account for the mistake in the transmission of the message.
The company relies upon various alleged errors to reverse the judgment recovered by plaintiff.
I. It is earnestly insisted by defendant that its liability is limited by the following stipulation made by...
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