Western Union Tel. Co. v. Longwill
| Decision Date | 21 March 1889 |
| Citation | 21 P. 339,5 N.M. 308,1889 -NMSC- 026 |
| Parties | WESTERN UNION TEL. CO. v. LONGWILL. |
| Court | New Mexico Supreme Court |
Error to district court, Santa Fe county.
Catron Knaebel & Clancy, for plaintiff in error.
Wm Breeden and W. B. Sloan, for defendant in error.
This is an action of trespass on the case, brought by the defendant in error against the Western Union Telegraph Company, to recover damages on account of alleged negligence in not delivering a telegram sent to him from Springer, N. M., on the evening of the 14th of January, 1884. Plaintiff resided at Santa Fe, where the message was addressed, and was a physician and surgeon. The purpose of the telegram was to summon him from Santa Fe to Springer to attend a person suffering from a gunshot wound. The message was not delivered until after 9 o'clock in the forenoon of the 15th. The telegram requested the presence of the plaintiff below that night. Two trains--one at 9 o'clock that night and one at 9 o' clock the next morning--had departed after the sending and receipt of the message at Santa Fe, and before the delivery to plaintiff. The telegraph office was in an adjoining building to the drug-store, where he kept his office, and was usually found, and within 150 or 200 yards of his residence. He was a wellknown resident of the city, and at home at the time the message should have been delivered. The declaration is in the usual form, except that it does not state with much fullness of detail the special circumstances of his legal injury. The defendant pleaded the general issue and a special plea setting up the fact that the message was transmitted upon certain conditions, which are set out in the message put in evidence. One condition was that the company would not be held liable for unrepeated messages. The other was that unless the person injured should within 60 days present a claim in writing, demanding damages from the company, it would be exonerated from all liability. The message was unrepeated. No demand in writing, claiming damages, was filed with the company within 60 days.
Plaintiff testified that he would have made the visit to Springer, but was prevented by the negligence of the company in not delivering the message until after train time, and that during the day of the 15th he was advised by another telegram from the same parties not to come, as it was too late. The injured man died on the 15th. He also testified that he would have charged $500 for the trip and professional services, and that such sum would have been a reasonable charge. His testimony was supported by another physician as to the reasonableness of the charge and the value of the proposed services. It also appeared in evidence that it would have required four or five days, including traveling time, to have completed the trip and treatment of the patient. During this time plaintiff admits that he was regularly engaged in the practice of his profession at Santa Fe, and had several patients in charge, but he says he would have made more by going to Springer, as that would have been a consultation fee.
The senders of the telegram were solvent. The damages claimed in the declaration were $1,000. The judgment recovered was for $500. At the conclusion of the evidence the defendant moved the court to instruct the jury to find for the defendant, and suggested reasons therefor. The court refused, and an exception was taken and saved. Exceptions were taken to the refusal of the court to charge the jury as requested in instructions numbered 3 and 4 moved by defendant, and for giving an instruction by the court of its own motion. Fourteen errors are assigned. The principal propositions discussed, however, may be ranged under the first, to the effect that the declaration and record do not disclose any legal cause of action against the defendant below; third, that the verdict is not supported by the evidence of the amount of damage sustained by the plaintiff, if any; fourth, that the plaintiff did not within 60 days present his claim in writing for the damages sued for; seventh, that the court erred in instructing the jury of its own motion as appears in the record.
Upon the first assignment, we think it sufficient to say that there appears to have been no demurrer, either general or special, to the declaration. Nor was there any objection made to the introduction of evidence, because there was no averment in the declaration under which evidence of plaintiff's damages could be received. While the statement in the declaration is in very general terms, it will be deemed good after verdict and judgment, when left unchallenged by the ordinary modes of reaching a formal insufficiency or uncertainty. The proof offered supplied the want of accuracy of allegation, and was admitted without objection. The appellant company is a corporation engaged in the business of transmitting news for hire. It owes a duty to the public. Want of proper care and diligence in the performance of this duty to the defendant in erroris the gravamen of his action. The defendant company sustained, strictly speaking, no contractual relations with the plaintiff, but it owed a duty to him by reason of its public character to perform its obligations not only to the sender of the message, with whom it did have contractual relations, but to the plaintiff as well. The injury sustained by the plaintiff was caused directly and immediately by the negligence of the defendant's agents and servants in not delivering the message within a reasonable time. It is urged on behalf of the plaintiff in error that no action can or ought to be maintained by the plaintiff for the reason that he was only the receiver, and not the sender, of the message, and that the action would only lie, if at all, by the sender of the message, on the contract entered into and embodied in the message or blank forming part of it. This is the rule in England. Playford v. Telegraph Co., L. R. 4 Q. B. 706; Dickson v. Telegraph Co., L. R. 2 C. P. Div. 62; Feaver v. Telegraph Co., 23 U. C. C. P. 150. Mr. Sutherland, in his work on Damages, states the rule to be different in this country, and uses the following language: And, further continuing the subject, referring to the case of Telegraph Co. v. Dryburg, 35 Pa. St. 298, says: "It was ruled that, though not insurers of the safe delivery of what is intrusted to them, their obligations, like those of common carriers, sprang from the public nature of their employment, and the contract under which the particular duty is assumed." 3 Suth. Dam. 314. That this is the American doctrine needs no further citation of authorities.
It is contended on behalf of the plaintiff in error that the condition annexed to the message imparted notice to the plaintiff below that the company would not be liable for any damages unless a claim in writing should be filed with the company within 60 days from the date of its receipt by him. That, it is urged, is not a contract for entire immunity from legal liability on account of the negligence or want of care of defendant's servants and employés, but it is a reasonable regulation, made necessary by the nature and character of its business, and does not violate any principle of public policy. "Telegraph companies may make reasonable regulations for the safe and proper conduct of their business, and have power to contract with the sender of the message, so as to relieve themselves from liability for inadvertencies, but not for gross negligence, misconduct, or bad faith." 3 Suth. Dam. 296; Telegraph Co. v Carew, 15 Mich. 525; Telegraph Co. v. Gildersleve, 29 Md. 248; Telegraph Co. v. Graham, 1 Colo. 230; Telegraph Co. v. Fontaine, 58 Ga. 433; True v. Telegraph Co., 60 Me. 9; Telegraph Co. v. Buchanan, 35 Ind. 429; Telegraph Co. v. Fenton, 52 Ind. 1; Candee v. Telegraph Co., 34 Wis. 471; Sweatland v. Telegraph Co., 27 Iowa 433; Breese v. Telegraph Co., 48 N.Y. 132; Grinnell v....
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