The Shawnee Milling Company v. The Postal Telegraph-Cable Company

• Decision Date: 07 July 1917
• Docket Number: 20,912
• Citation: 101 Kan. 307,166 P. 493
• Parties: THE SHAWNEE MILLING COMPANY, Appellee, v. THE POSTAL TELEGRAPH-CABLE COMPANY, Appellant
• Court: Kansas Supreme Court

166 P. 493

101 Kan. 307

THE SHAWNEE MILLING COMPANY, Appellee, v. THE POSTAL TELEGRAPH-CABLE COMPANY, Appellant

No. 20,912

Supreme Court of Kansas

July 7, 1917

Decided July, 1917.

Appeal from Shawnee district court, division No. 1; ALSTON W. DANA judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TELEGRAM--Dictated Over Telephone--Nature of Contract--Error in Transmission -- Liability. Where a telegraphic message is dictated over a telephone and is thus received by a telegraph company for transmission it will not be presumed that any preferential or discriminatory service in violation of law is intended, and the message will be considered as if it were written on the ordinary blank forms furnished by the telegraph company, and the company's liability for an error in transmission is neither greater nor less nor different than if the message were delivered in the usual and more formal mode of sending telegrams.

2. SAME--Intrastate Business -- Contract Limiting Liability. In conducting its intrastate business a telegraph company may make reasonable stipulations limiting its liability, but in the absence of positive or permissive statutes governing the subject, the reasonableness of any such stipulation is a question for judicial determination.

3. SAME--A stipulation limiting a telegraph company's liability in damages for an error in transmission of a telegram to a mere return of the rate exacted for sending it is unreasonable.

4. TELEGRAM -- Partly in Code -- Liability for Error in Transmission. Where a telegram is partly in code, but bears enough plain English on its face to apprise the telegraph company that it is a business message, and the company's manager in charge where the telegram was received knew it was a business message, although he did not know its details, the company was charged with sufficient notice of its importance and with notice that a failure to transmit the message correctly would probably lead to consequential damages, and the telegraph company is liable therefor.

5. SAME. The damages attendant on a failure to transmit a business message examined and held to be certain and proximate, and that a recovery can be had thereon.

Edwin E. Brookens, of Topeka, for the appellant.

Robert Stone, and George T. McDermott, both of Topeka, for the appellee.

OPINION

DAWSON, J.:

The plaintiff recovered a judgment for damages against the defendant for an error in the transmission of a telegram delivered orally by telephone for forwarding to a firm of grain dealers in Wichita. The telegram was partly in code. It reads:

"TOPEKA, KANSAS, August 7th, 1914.

"Wagner Grain Co., Wichita, Kansas.

"Perfume have booked fluting accursed debating Kansas City basis boundary.

"SHAWNEE MLG. CO."

The telegram was an acceptance of an offer of ten thousand bushels of wheat. The code word for such a purchase was "fluting." It was erroneously transmitted to read "flirting," which meant six thousand bushels. The more or less proximate consequences of this error occasioned this lawsuit.

One of the defenses of the telegraph company was that the telegraphic message was received for transmission as an unrepeated telegram, and that the terms and conditions for the receipt and transmission of such messages were those set forth on its regular blank forms for telegrams, parts of which read:

THE POSTAL TELEGRAPH-CABLE COMPANY.

"(Incorporated)

"Transmits and delivers the within telegram subject to the following terms and conditions:

"To guard against mistakes or delays, the sender of a telegram should order it REPEATED; that is telegraphed back to the originating office for comparison. For this, one-half the unrepeated telegram rate is charged in addition. Unless otherwise indicated on its face, THIS IS AN UNREPEATED TELEGRAM AND PAID FOR AS SUCH, in consideration whereof it is agreed between the sender of the telegram and this Company as follows:

"1. The Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any UNREPEATED telegram, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for nondelivery, of any REPEATED telegram, beyond fifty times the sum received for sending the same, UNLESS SPECIALLY VALUED; nor in any case for delays arising from unavoidable interruption in the working of its lines; NOR FOR ERRORS IN CIPHER OR OBSCURE TELEGRAMS."

It will thus be seen that the telegraph company has two principal schedules of rates--one for unrepeated messages in which its liability for errors in transmission was limited to the amount received by it for sending the message, and a rate fifty per cent higher for repeated messages in which its liability for erroneous transmission was stipulated in advance to be fifty times the sum paid for the service. These rates must be filed with the public utilities commission and may not be departed from by the telegraph company without the assent of that tribunal; and all discrimination and preferences in rates or service is forbidden by the public utilities act. (Laws 1911, ch. 238, §§ 3, 10-12, 20, 30, Gen. Stat. 1915, §§ 8329, 8337-8339, 8347, 8358.) The service performed by the defendant must be held to have been in pursuance of its regular corporate business, and it should be assumed that no discriminatory or preferential service was being extended to plaintiff when the defendant received plaintiff's message by telephone for transmission to Wichita. It must be considered as if the plaintiff had formally written the message in the usual way on regular blanks furnished by the company. That telegraph companies frequently accept messages by dictation over a telephone is well known. It would be harsh to say that any illegal preference forbidden by section 8401 of the General Statutes of 1915 is intended in so doing. Nor would it be just to hold that in extending this apparently harmless courtesy the telegraph company thereby places itself in a less favorable position or assumes a greater responsibility than it does when it receives for transmission telegrams written in the usual way with the usual conditions attached. Nevertheless, if this practice is to be regarded as a general one, carrying a different rate or subjecting the telegraph company to a different degree of responsibility, a uniform schedule of rates and charges for such service and the regulations pertinent thereto should be filed with the public utilities commission and subject to its approval; and such rates and service are invalid until they are so filed; and when formally promulgated they may not be departed from with impunity. (Gen. Stat. 1915, §§ 8398, 8400, 8416; The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 P. 544; Mollohan v. Railway Co., 97 Kan. 51, 154 P. 248.)

The court is of opinion that in the absence of a distinct schedule of rates applying to telegrams delivered for transmission by telephone, the case is governed by the conditions attaching to the usual and more formal mode of transacting its corporate business.

The telegraph company is liable, if at all, according to the terms of its contract of service, unless that contract is an unreasonable limitation of its liability for negligence. It was pleaded that the message was received for transmission as an unrepeated message. The plaintiff's general denial traversed this as well as the other allegations of the answer, but there is seemingly no contention that the case should turn upon whether the telegram was to be transmitted as a repeated or an unrepeated message, nor is it intimated that it was transmitted as a repeated message "specially valued" according to the rates and terms for transmission of such messages.

Is this particular limitation of liability a reasonable one? This question is settled as to interstate messages. (Bailey v. Telegraph Co., 97 Kan. 619, 623, 156 P. 716; Id., 99 Kan. 7, 160 P. 985; Kirsch v. Telegraph Co., 100 Kan. 250, 164 P. 267.) The case at bar involves only an intrastate telegraph message, and we have no state statute specifically authorizing common carriers to limit their common law liability as does the Carmack amendment (Part 1, 36 U.S. Stat. at Large, ch. 309, pp. 539, 544); and telegraph companies are somewhat...