Western Union Tel. Co. v. McKibben

• Decision Date: 27 December 1887
• Citation: 114 Ind. 511,14 N.E. 894
• Parties: Western Union Tel. Co. v. McKibben.
• Court: Indiana Supreme Court

114 Ind. 511

14 N.E. 894

Western Union Tel. Co.

v.McKibben.^a1

Supreme Court of Indiana.

December 27, 1887.

Niblack, J., dissenting.

Appeal from circuit court, Brown county; N. R. Keyes, Judge.

Action under Rev. St. Ind. 1881, § 4177, by Marion McKibben against the Western Union Telegraph Company for special damages for the latter's negligence in delivering a telegram. Judgment for plaintiff, and defendant appealed.

McDonald, Butler, & Mason, for appellant. John C. Orr, for appellee.

Howk, J.

This suit was commenced by appellee, McKibben, against the appellant, on the eleventh day of April, 1885, in the Bartholomew circuit court. The object of the suit was to recover certain special damages which appellee averred that he had sustained by and through the alleged negligence of appellant, its operators and servants, in failing to deliver a certain telegraphic dispatch or message. After the cause was put at issue, on appellant's application the venue thereof was changed to the court below. There the issues joined were tried by a jury, and a general verdict was returned for appellee, assessing his damages in the sum of $244.50. With their general verdict, the jury also returned into court their special findings on particular questions of fact submitted to them by appellant under the direction of the court. Over appellant's motions for judgment in its favor on the special findings of the jury, notwithstanding their general verdict, and for a new trial, the court rendered judgment for appellee for his damages assessed by the jury in their general verdict, and for his costs in this action expended. In this court errors are assigned by appellant which call in question the rulings of the trial court in sustaining appellee's demurrers to the second, third, and fourth paragraphs of its answer, and in overruling its motions to strike out parts of the deposition of William F. Thompson, and for a new trial, and also the sufficiency of the facts stated in appellee's complaint herein to constitute a cause of action. In his complaint, appellee averred that appellant was a telegraph company, exercising the franchises of a corporation under the laws of this state, and had a line of telegraph wires extending from Terre Haute, in Vigo county, to Columbus, in Bartholomew county, in this state; that on the eleventh day of November, 1884, appellant was engaged in telegraphing for the public generally, and in receiving and transmitting over such wires telegraphic messages for hire; that appellee was, by occupation or trade, a mechanical or steam engineer, and was wholly dependent upon his said trade and his labor thereat for the daily maintenance of himself and his family; that on the day last named, and for a short time prior thereto, appellee was out of employment, and had applied to the Keyes Manufacturing Company, of Terre Haute, Indiana, then and there engaged in manufacturing, for employment as an engineer, but at the time of his application to such company no vacancy existed in the engineer's department of such factory, and he was not employed therein; that thereupon appellee requested of the agents of such manufacturing company that when a vacancy should occur in the engineer's department thereof he should be employed therein, and further requested such agents to notify him when such company should want him by a telegram to John M. Thompson, at Columbus, Indiana; that thereupon appellee made arrangements with said John M. Thompson that in case he should receive any telegram from Terre Haute in reference to appellee, or to his employment by such company, said Thompson would find appellee, and communicate to him the contents of such telegram. And appellee further alleged that on November 11, 1884, a vacancy occurred in the engineer's department of such company's establishment; that one William F. Thompson, an employe and as the agent of such company, having full authority therein to employ appellee as an engineer in such factory for and on behalf of such company, on the day last named sent from appellant's office in Terre Haute, Indiana, to said John M. Thompson at Columbus, Indiana, for the use and benefit of appellee, a telegraphic message of the terms and tenor following, to-wit:

“Terre Haute, Ind., November 11, 1884.

To John M. Thompson, Columbus, Ind.: Tell McKibben to come at once. Two dollars per day. [Signed] Wm. F. Thompson.”

And appellee averred that he was the same McKibben mentioned in such telegram, which was in reference to his employment as an engineer by the Keyes Manufacturing Company at and for the wages of two dollars per day; that such message was duly sent from Terre Haute over appellant's wires, and arrived at its office in Columbus, Indiana, at about 2 o'clock p. m. of November 11, 1884; that said John M. Thompson was then, and for six years preceding had been, a resident of such city of Columbus, and during all of such six years had resided in the same house and location in such city, and within one mile of appellant's office or station therein; and that said John M. Thompson was at home on that day, and was easily accessible to appellant's agents at Columbus for the purpose of the delivering of the aforesaid telegram. But the appellee averred that, notwithstanding the facts aforesaid, appellant, and its agents and employes in charge of its office and business at Columbus, negligently failed and refused to deliver such telegram to said John M. Thompson on said day, or to make any proper inquiries and search for said John M. Thompson or his place of residence, and negligently permitted such telegram to lie in appellant's office at Columbus, and wholly failed, neglected, and refused to deliver such telegram to said John M. Thompson, or to any one else; that if appellant had promptly delivered such message to said John M. Thompson, as it might and ought to have done, he would have promptly communicated the contents thereof to appellee, who would have gone at once to Terre Haute and accepted the situation so offered by the Keyes Manufacturing Company at the wages mentioned in such telegram; that said company held such situation open for appellee for about 48 hours after sending such message, and, appellee having failed to arrive at Terre Haute to take such situation, said company had not since a vacancy in its establishment wherein appellee could be engaged; that appellee was a competent engineer, and would have given satisfaction to such company had he been employed thereby; that, by reason of appellant's negligence in failing to deliver such telegram as aforesaid, appellee was and had been deprived of employment in the situation aforesaid from November 11, 1884, until the commencement of this suit, and had been during such time out of employment of any kind, although during all of such time, he had made diligent efforts to obtain employment in his trade or occupation, and to obtain work at anything; that, by reason of such negligence of appellant, appellee had lost the two dollars per day which he would have obtained in the employment offered him by such manufacturing company for 160 days, and had lost the opportunity for permanent employment, which would have been given him in such situation by the Keyes Manufacturing Company. By reason of all which, appellee had been and was damaged in the sum of $500, which was due and unpaid. Wherefore, etc.

The first error complained of here, by appellant's learned counsel, is the sustaining of appellee's demurrer to the second paragraph of the answer. In this paragraph of the answer, appellant alleged that the telegraphic message mentioned in appellee's complaint was delivered to appellant's agent at its office in the city of Terre Haute, Indiana, on the eleventh day of November, 1884; that such message when delivered to appellant for transmission was written upon one of its message blanks provided for that purpose; that the terms and conditions upon which appellant agreed and undertook to transmit such message were printed upon such message blank, and the sender of such message agreed to such terms and conditions, subject to which such message was to be transmitted; that the terms and conditions upon which appellant undertook the transmission of such message were in the words and figures following: (Here are set out such “terms and conditions,” all of which we omit except the following, namely: “The company will not be liable in any case for damages where the claim is not presented in writing within sixty days after sending the message.”) And appellant averred that no claim for the damages alleged in appellee's complaint, nor for any damages growing out of the nondelivery, as averred, of the aforesaid telegram, was presented to appellant in writing within 60 days after sending such message, as provided for in such terms and conditions printed on such message blank, and agreed to by the sender. Wherefore, etc.

It is earnestly contended, on behalf of appellant, that the facts stated in the second paragraph of its answer, and admitted to be true by the demurrer thereto, are amply sufficient to bring appellee's case within the decisions of this court in Telegraph Co. v. Meredith, 95 Ind. 93, and Telegraph Co. v. Jones, 95 Ind. 228, and to bar his right of recovery herein. In each of these cases it was held, substantially, that a telegraph company might reasonably limit its liability to the sender of a message by an express contract, and that a limitation of 60 days for the presentation of claims is a reasonable one. Our statute, in force since May 6, 1853, provides as follows: “Telegraph companies shall be liable for special damages occasioned by failure or negligence of their operators or servants in receiving, copying, transmitting, or delivering dispatches,” etc. Section 4177, Rev. St. 1881. In considering this section of the statute, it was held by this court in Telegraph Co. v. Fenton, 52 Ind. 1, that the section is clearly broad enough to...