Wann v. Western Union Tel. Co.

• Decision Date: 31 March 1866
• Citation: 37 Mo. 472
• Parties: JOHN WANN, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant.
• Court: Missouri Supreme Court

37 Mo. 472

JOHN WANN, Respondent,

v.THE WESTERN UNION TELEGRAPH COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1866.

Appeal from St. Louis Court of Common Pleas.

This action was instituted to recover damages for alleged carelessness of the Western Union Telegraph Company in transmitting a dispatch for plaintiff, from St. Louis to New York city. It was admitted on the record that the defendant was a duly incorporated company doing business under the “Act concerning telegraph companies.” (R. C. 1855, ch. 156.) The answer denies carelessness on the part of the defendant, and sets up a failure of the plaintiff in complying with the published regulations of the company, which, among other things, require the sender of an important message to pay an additional price of one-half the usual rates for repeating the same. The answer also sets out the published regulations of the company, and charges that the plaintiff had full knowledge of said regulations, and contracted with reference to the same.

Plaintiff's knowledge of these regulations was admitted on the trial.

On the day previous to the transmission of the message in question, Messrs. McAndrew and Wann, of New York, telegraphed the plaintiff as follows:

“SEPTEMBER 17, 1862.

Shall we forward salt by steam or sail on Lake? Can buy same quantity of each in time. Not much change in freight since you were here. Reply at once.

(Signed)

MCANDREW & WANN.'

In reply, the plaintiff sent the dispatch in question, to-wit:

“ST. LOUIS, September 18, 1862.

Ship by sail immediately. Take 5,000 Liverpool, three thousand Turk's Island.

(Signed)

JOHN WANN.”

When this dispatch reached McAndrew & Wann in New York, it read: “Ship by rail immediately,” etc. That is, the word “rail” was substituted for the word “sail” in the original dispatch.

On the following day, McAndrew & Wann telegraphed plaintiff as follows:

“SEPTEMBER 19, 1862.

Have bought 5,000 Liverpool, one twelve half and three thousand Turk's. About 75 four months, forwarding by rail to Chicago.

(Signed)

MCANDREW & WANN.”

Five days after this last dispatch, plaintiff telegraphed McAndrew & Wann as follows:

ST. LOUIS, September 24, 1862.

“Don't ship any salt by railroad and steam, only canal and lake.

(Signed)

JOHN WANN.”

The only evidence introduced, on the trial, to sustain the charge of carelessness of the company was, that, in the message as delivered in New York the word “rail” was substituted in place of the word “sail” in the original one. On the other hand, it was in evidence that the plaintiff did not reply to the dispatch of McAndrew & Wann of the 19th September, advising him of the shipment “ by rail to Chicago,” until the 24th September, and that plaintiff's dispatch of the 18th September (the one in question) was not properly responsive to the question of his correspondents in New York--“Shall we forward by steam or sail on Lake?” The defendant proved by experts, that the telegraph apparatus used by the company in transmitting the dispatch was in complete order; that the system used by said company was the one known as Morse's system, and the most perfect in use, and that the employees of the company who acted as operators were skilful and experienced.

It was admitted as proved that the ordinary price for said dispatch to New York, ($1.92) was paid on delivery, but not the additional price for repeating the dispatch (which would be 96 cents additional.)

The main question in the case arose on instructions given and refused. The one given at the instance of the plaintiff is as follows:

“The jury are instructed that defendants are responsible as common carriers, for any negligence or carelessness in copying or transmitting the plaintiff's message, and are responsible for such damages as plaintiff may have suffered, if any, by reason of defendants having carelessly or negligently transmitted such message, and the defendants are not excused from their said responsibility though the plaintiff may have had notice of the terms claimed by the defendants, as set forth on the tops of the papers used by them in the writing and sending of dispatches.”

The defendants' instructions, being the converse of this, were refused.

The jury found for the plaintiff, and judgment was rendered against defendants for $1,085.44.

Knight, for appellant.

I. The court below clearly erred in declaring the law. The defendant was not a common carrier, or liable as such. Telegraph companies come neither within the terms or meaning of the rule. They carry no goods. They have no lien for freight; they have possession of nothing which they can convert to their own use. They have no means of ascertaining the value of the dispatch, or whether it has any value or not. It may have no general value, and still have great value to the parties interested. It may be in cypher and unintelligible to the employees of the company, and yet be worth a million to the parties. They have no right to demand a disclosure of its nature or importance. They have none of the general rights of carriers.) Jones on Bail., App. p. 24 et seq.; Edw. 353; Sto. on Bail. § 15, pp. 566-7.)

They are not eo nomine classed among bailees of that description. The contract locatio operis mercium vehendarum cannot, in the nature of the case, appertain to them. (2 Kent, 599.)

The language of all the books unites in describing the common carrier as one who carries goods, and has the custody of goods; has a special interest in the goods carried; has a lien on the goods for freight, and may sell the goods to satisfy his lien. (Chit. on Car. 15.)

In consideration of these peculiar rights, he was originally held to the strictest account, even as an insurer against inevitable accident. (1 Term, 33; 4 Dougl. 287; 3 Esp. 131.)

More modern cases have relaxed the rule so far, that it has been said they have unsettled the law on the subject. (Walk. Am. Law, 453 & note; 1 Am. L. Reg., 65 et seq.; 4 Sandf. R. 136.)

Courts have not only relaxed the rule, but have restricted it in its application. Hence the better opinion seems to be, “that the strict rule of the common law liability being harsh, courts will not extend the rule when the reason for it has failed.” (2 Peters, S. C. 150.) Hence it does not extend to carrying passengers ( ibid); nor to carrying baggage beyond an ordinary amount (9 Wend. 85); nor to express companies (19 Barb. 577; 5 Sandf. R. 180; 18 Barb. 500; 24 Barb. 533; 2 Duer, 471); nor to wharfingers (7 Cow. 497); nor to forwarders (6 Hill, N. Y. R. 158; 4 Dumf. & East, 583; 8 Cow. 223; 2 Smith [E. D.] 195; 12 Johns. 232.)

So we find, so far as the subject has undergone direct judicial investigation, the weight of authority is largely against applying the common carrier liability to telegraph companies. (Birney v. York & W. P. Tel. Co., 18 Md. 341, [1862]; Camp v. W. U. Tel. Co., 1 Metcalf, R. 164; Shields v. Wash. Tel Co., 9 W. Law Jour. 283; McAndrew v. Electric Tel. Co., 33 Eng. L. & Eq. 180; Drybuy v. N. Y. & W. P. Tel. Co., 35 Penn. 298.)

This last case was one based on the misfeasance of an agent of the company and not strictly in point, but Judge Woodward, in delivering the opinion, cites the Camp case (1 Metc. R. 164), and distinguishes it from the case before him, and without dissenting from the doctrine of that case, holds this language: “Though telegraph companies are not, like carriers, insurers for the safe delivery of what is entrusted to them, their obligations, so far as they reach, spring from the same sources--the public nature of their employment, and the contract under which the particular duty is assumed.”

[ a.] The only adjudicated case directly holding telegraph companies liable as common carriers, it is believed, is the case of Parks v. Alta Cal. Tel. Co. (13 Cal. R. 422.) This case was decided in 1859, and has no reference to previous adjudications--nor does it seem to be well considered. No reference appears to have been made to the Cal. statute on the subject, either by counsel or court.

On the other hand, both the Birney (Md.) and the Camp (Ky.) cases appear to have been ably argued by counsel, and well considered by the courts. The English authority above cited (33 Eng. L. & Eq. 180) has reference mainly to the construction of the statute. (16 & 17 Vic. C. 103) which required the telegraph company to “receive and send messages, subject to reasonable regulations to be adopted by the company;” and the question in that case was, whether the regulations of the company were reasonable. The court decided in the affirmative. In arriving at that conclusion, the several judges compared the liability of telegraph companies to that of common carriers, and asserted that even common carriers, might limit their liability by reasonable regulations. Our statute is in terms more favorable to the company than the English statute. It requires the company “to receive and transmit” only upon payment or tender of the usual charge, according to the regulations of the company.” (R. C. 1855, p. 156.)

[ b.] In a recent Canadian case, it was held that the telegraph company was not liable for transmission of a message beyond their line, although they had received payment therefor, on the ground that they had limited their liability by notice. (Stevenson v. Montreal Tel. Co., 16 Upper Can. 530.)

[ c.] In another case, it was held that the same company were not liable to damages for failure to deliver a message to another company to be forwarded, for the purpose of accepting a proposed contract, on the ground that no legal contract could be created in that way. (Kinghorne v. Montreal Tel. Co., 18 U. C. 67.) If contracts can be created in this way, they are certainly distinguishable from those made by the mail. (Trevor v. Wood, 41 Barb. 255.)

[ d.] It has long since been held that the carrier of the mails is not liable as a common carrier. And as it was said by the eminent judges in the celebrated post-office case of Lane v. Cotton (1 Salk. 17), that “its office is for...