Russell v. The Western Union Telegraph Company

• Decision Date: 11 July 1896
• Docket Number: 8772
• Citation: 45 P. 598,57 Kan. 230
• Parties: JAMES M. RUSSELL v. THE WESTERN UNION TELEGRAPH COMPANY
• Court: Kansas Supreme Court

45 P. 598

57 Kan. 230

JAMES M. RUSSELL v. THE WESTERN UNION TELEGRAPH COMPANY

No. 8772

Supreme Court of Kansas

July 11, 1896

Decided July, 1896.

Error from Wyandotte District Court Hon. Henry L. Alden, Judge.

AFFIRMED.

JAMES M. RUSSELL brought suit against the Western Union Telegraph Company to recover damages, because of its failure to promptly deliver to him the following message:

"CARRIER MILLS, ILL., October 13, 1889.

"To J. M. Russell, Edgerton Place in Passfield Addition, Kansas City, Mo.: Don't think mother will live till morning. Come at once.

W. D RUSSELL."

The petition alleges that the plaintiff was a resident of Kansas City, Kansas; that the message was delivered to the defendant Company at Carrier Mills, Illinois, on the day of its date for transmission to him in Kansas City; that, through the willful, wanton and culpable negligence of the defendant, the message was not delivered until the 15th of October at about 5 o'clock in the evening; that he took the first train thereafter, but did not reach his mother's home until after she was dead and buried; that, by reason of the defendant's negligence, he was needlessly put to great trouble and expense, and caused great sorrow because of his inability to see his mother in her last moments. The defendant answered, alleging, among other things, that the message was delivered to it on a printed blank subject to certain conditions, one of which was: "The company will not be liable for damages in any case where the claim is not presented in writing within 60 days after sending the message." It further alleges that no claim for damages was made within 60 days after the message was sent. The plaintiff replied "that he did not authorize any person to make such contracts for him; that he did not know that any such contract had been made, and that he never agreed to the terms of said pretended contract"; that by the negligence of the defendant he was taken from his home to a distant state on a fruitless journey, and was there unavoidably detained for more than 60 days after the receipt of the message; and that, soon after his return to his home in Kansas City, where said message was received, he brought this suit. The defendant demurred to the reply, and this demurrer was sustained, and judgment entered thereon for the defendant for costs. The plaintiff alleges error in this ruling of the court, and presents it here by petition in error.

Judgment affirmed.

U Hoyt, for plaintiff in error.

George H. Fearons, Arthur Francis Smith, and Karnes, Holmes & Krauthoff, for defendant in error.

ALLEN J. All the Justices concurring.

OPINION

ALLEN, J.

The contention on behalf of the plaintiff is, that he was not a party to the contract and is not bound by its terms; that the defendant is a corporation enjoying corporate privileges derived from the public, and charged with the performance of certain public services; that by reason of its relations to the public it was bound to correctly transmit, and promptly deliver the message to him. The claim of liability because of a failure to perform a public duty, independent of any contract, finds some support in the authorities. 25 Am. &amp Eng. Encyc. Law 826; Thompson, Electricity, § 427. It will be noticed that this is not an action to recover damages for delivering a changed message whereby the receiver was misled. In such a case it may well be argued that a liability arises from the wrongful act of the defendant in delivering to him a false message whereby he is misled to his injury, and that this liability is wholly independent of any contract made by the sender of the message without authority of the receiver. In this case, however, the plaintiff was not misled by any act of the defendant. The defendant, at most, merely failed to perform its undertaking to promptly transmit and deliver the message. Just how a liability to perform that service can arise independently of any contract with the sender of the message, we are unable to perceive. A telegraph company...