Strong v. Western Union Telegraph Co.

• Decision Date: 15 January 1910
• Citation: 109 P. 910,18 Idaho 389
• Parties: ELISHA STRONG et al., Appellants, v. WESTERN UNION TELEGRAPH CO., Respondent
• Court: Idaho Supreme Court

109 P. 910

18 Idaho 389

ELISHA STRONG et al., Appellants, v. WESTERN UNION TELEGRAPH CO., Respondent

Supreme Court of Idaho

January 15, 1910

TELEGRAPH COMPANIES - NEGLIGENCE - RULES AND REGULATIONS - LIABILITY - PUBLIC POLICY - VOID STIPULATIONS - EVIDENCE - ALLEGATION OF NEGLIGENCE-PRIMA FACIE CASE-DEFENSE-NONSUIT-CONTRACT.

(Syllabus by the court.)

1. A telegraph company is chartered for public purposes, has the power of eminent domain, is a public agent and exercises quasi-public employment, and is required to perform the duties it was chartered to perform with the same care, skill and diligence that a prudent man would, under like circumstances, exercise in his own affairs, and it is contrary to public policy to permit it by rules and regulations to restrict its liability for damages resulting from its own negligence or carelessness.

2. The reasonableness or unreasonableness of rules and regulations made by a telegraph company must be determined with reference to public policy, precisely as in the case of common carriers, and a stipulation which exempts such company from damages for its own negligence is void.

3. Held, that the evidence in this case shows negligence on the part of the telegraph company, and that the sufficiency of the complaint, not having been challenged by demurrer or upon the introduction of evidence, but being first challenged by a motion for a nonsuit, which is not a ground for a nonsuit that upon a reversal of this case the plaintiff should be allowed to amend his complaint so as to allege negligence in the transmission of said telegram.

4. The term "gross negligence" is used to denote a degree of carelessness greater than the degree implied by "ordinary negligence," and is sometimes used to denote wilful negligence or fraud.

5. Where a telegraph company fails to transmit a message correctly, the proof of that fact is prima facie evidence of the company's negligence.

6. If the failure to correctly transmit a telegram was not the result of the negligence of the company, the means of showing that fact is within the possession of the company, and it may show it as a defense.

7. Held, that the evidence shows that said telegram was delivered to the agent of the company for transmission and was accepted by it; that the company made a mistake in its transmission, and that showing made a prima facie case in favor of the plaintiff, and the court erred in granting a nonsuit and entering a judgment of dismissal.

8. Held, that the contract for the sale of the cattle was made with the commission company.

APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. Alfred Budge, Judge.

Action to recover damages for an alleged mistake made by the telegraph company in transmitting a message. Motion for nonsuit was granted and judgment of dismissal entered. Reversed.

Reversed and remanded. Costs of appeal awarded to appellant.

Thos L. Glenn, for Appellants.

An error made in a plainly written message, each word distinguishable by the naked eye, is gross negligence, unless some exculpatory evidence is adduced. (2 Joyce on Electric Law, 2d ed., sec. 736; Western Union Tel. Co. v. Goodbar (Miss.), 7 So. 214.)

The only defense offered by respondent is that the printed stipulations on the back of the message delivered to respondent by appellants for transmission provided, among other things, that the sender must, to hold the company liable, order the message to be repeated, and pay the company a fee, equal to one-half of the rate for transmission; such stipulations are void as against public policy, and are an outrage on justice.

The usual stipulation as to unrepeated messages is void where the company's negligence is the cause of the damage or loss (Citing cases found in opinion.)

Clark & Budge, for Respondent.

It cannot be said that appellants contracted with the commission company directly, because the parties did not come to a common understanding. There was no meeting of minds as a result of the telegraphic communications. (Starks Co. v. Brewer, 77 Kan. 610, 95 P. 402; Perkins Glass Co. v. Pacific C. & T. Co. (Cal.), 54 P. 101.)

The great weight of authority upholds the right of the company to adopt reasonable rules, regulations and conditions to govern the sender of messages, and which shall control in fixing the liability of the company for delays or mistakes in the transmission or delivery of messages which it receives. (Primrose v. W. U. Tel. Co., 154 U.S. 1, 14 S.Ct. 1098, 38 L.Ed. 883; Camp v. W. U. Tel. Co., 1 Met. (Ky.) 164, 71 Am. Dec. 461; Coit v. Tel. Co., 130 Cal. 657, 80 Am. St. 153, 63 P. 83, 53 L. R. A. 678; Kiley v. Tel. Co., 109 N.Y. 231, 16 N.E. 75; Grinnell v. Tel. Co., 113 Mass. 299, 18 Am. Rep. 485; U.S. Tel. Co. v. Gildersleeve, 29 Md. 232, 96 Am. Dec. 519; Clement v. W. U. Tel. Co., 137 Mass. 463; Wann v. W. U. Tel. Co., 37 Mo. 472, 90 Am. Dec. 395; Becker v. W. U. Tel. Co. , 11 Neb. 87, 38 Am. Rep. 356, 7 N.W. 868; Breese v. W. U. Tel. Co., 48 N.Y. 132, 8 Am. Rep. 526; Pegram v. W. U. Tel. Co., 97 N.C. 57, 2 S.E. 256; Passmore v. W. U. Tel. Co., 78 Pa. 238; Aiken v. W. U. Tel. Co., 5 S.C. 358; W. U. Tel. Co. v. Smith, 3 Wills. Civ. Ct. App. (Tex.) sec. 62; W. U. Tel. Co. v. Hearne, 77 Tex. 83, 13 S.W. 970; Womack v. W. U. Tel. Co., 58 Tex. 176, 44 Am. Rep. 614; W. U. Tel. Co. v. Coggin, 68 F. 137; Birkett v. Tel. Co., 103 Mich. 361, 50 Am. St. 374, 61 N.W. 645, 33 L. R. A. 404; Jacob v. Tel. Co., 135 Mich. 600, 98 N.W. 402; Riley v. Tel. Co., 8 Misc. 217, 28 N.Y.S. 581; Wheelock v. Postal Tel. Co., 197 Mass. 119, 83 N.E. 313, 14 Ann. Cas. 188; Halsted v. Postal Tel. Co., 193 N.Y. 293, 127 Am. St. 952, 85 N.E. 1078, 19 L. R. A., N. S., 1021; Monsees v. Tel. Co., 127 A.D. 289, 111 N.Y.S. 53.)

If negligence is relied upon as a cause of action, it must be alleged. (Cumberland Telephone & Tel. Co. v. Pierson, 170 Ind. 543, 84 N.E. 1088; Pittsburg etc. Ry. Co. v. Schepman, 171 Ind. 71, 84 N.E. 988; 29 Cyc. 970.)

Appellants simply allege the commission of an error, which so far as we know may have resulted from atmospheric disturbances, or from other cause for which respondent was in no way responsible. If they had alleged negligence in their complaint, they have not proved negligence, but the commission of an error, and such proof in jurisdictions which decline to relieve the company from liability for errors occurring through negligence, as well as in jurisdictions which uphold such stipulations, is not considered sufficient proof of negligence. (White v. Tel. Co., 14 F. 710, 5 McCrary, 103; Becker v. Tel. Co., 11 Neb. 87, 38 Am. Rep. 356, 7 N.W. 868; Tel. Co. v. Hearne, 77 Tex. 83, 13 S.W. 970; Sweatland v. Tel. Co., 27 Iowa 433, 1 Am. Rep. 285; Thompson v. Tel. Co., 64 Wis. 531, 54 Am. Rep. 644, 25 N.W. 789; Halsted v. Tel. Co., 193 N.Y. 293, 127 Am. St. 952, 19 L. R. A., N. S., 1021, 85 N.E. 1078; Womack v. W. U. Tel. Co., 58 Tex. 176, 44 Am. Rep. 614; Breese v. Tel. Co., supra; Aiken v. Tel. Co., supra.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought by the appellants, as plaintiffs, to recover damages in the sum of $ 581.17, alleged to have been sustained by reason of an error in the transmission of a telegraphic message delivered by appellants to respondents at the town of Soda Springs, Idaho, on or about March 6, 1907, to be transmitted to parties in Denver, Colo.

The principal issue made by the pleadings was whether the defendant was liable because of a mistake made in the transmission of said telegram. The action was tried by the court and a jury, and at the close of plaintiffs' evidence, counsel for defendant moved for a nonsuit, which motion was granted by the court and judgment of dismissal was entered. The appeal is from said order and the judgment.

The following facts, among others, appear from the record:

The telegraphic message was written upon one of the respondent company's telegraph blanks with all the printed provisions upon said blanks. Said telegraph blank contained the following matter, to wit: "Western Union Telegraph Company, Incorporated. . . . Send the following message subject to the terms on back hereof, which are hereby agreed to." The following is the telegram written thereon:

"Soda Springs, Idaho, March 6th, 1907.

"To Colorado Live Stock & Commission Co.,

Denver Stock Yards, Denver, Colorado.

"Will you honor draft of W. L. White on you in payment of 84 head of steers at three ninety-five per hundred two per cent shrink weighed here.

"STRONG & STARK."

On the face of said telegram the following printed matter occurred: "Read the notice and agreement on the back," and on the back of said telegraph blank appears the following: "All Messages Taken By This Company Are Subject to the Following Terms:

"To guard against mistakes or delays, the sender of a message should order it REPEATED; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this Company, that said Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery of any UNREPEATED message, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for non-delivery of any REPEATED message, beyond fifty times the sum received for sending the same, unless specially insured, nor in any case for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this Company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other Company when...