Western Union Telegraph Co v. Czizek, 300

• Decision Date: 10 March 1924
• Docket Number: No. 300,300
• Citation: 264 U.S. 281,44 S.Ct. 328,68 L.Ed. 682
• Parties: WESTERN UNION TELEGRAPH CO. v. CZIZEK
• Court: U.S. Supreme Court

264 U.S. 281

44 S.Ct. 328

68 L.Ed. 682

WESTERN UNION TELEGRAPH CO.

v CZIZEK.

No. 300.

Argued Feb. 26 and 27, 1924.

Decided March 10, 1924.

Messrs. Francis Raymond Stark, of New York City, and Beverly L. Hodghead, of San Francisco, Cal., for petitioner.

Mr. R. H. Johnson, of Boise, Idaho, for respondent.

Mr. Justice HOLMES delivered the opinion of the Court.

This is a suit against the Telegraph Company for failure to forward and deliver to the plaintiff a message from one Jones, found by the Court below to have been acting as agent for the plaintiff in the matter. The District Court found for the defendant, but the judgment was reversed by the Circuit Court of Appeals, 272 Fed. 223, and at a second trial, in deference to the Circuit Court of Appeals, a judgment was entered for the plaintiff, which was affirmed, 286 Fed. 478. Certiorari granted. 262 U. S. 739, 43 Sup. Ct. 700, 67 L. Ed. 1208.

The plaintiff owned fifty shares of stock in the Idaho National Bank at Boise, Idaho. Miller, vice president of the bank, was buying the stock with a view to a merger. He talked with the plaintiff and told him that he would buy his stock and that they would have no difficulty in agreeing on the price. The plaintiff told this to Jones, an attorney at Boise, who owned fifteen shares, asked Jones to act for him, saying that they would sell their stock together, and told Miller that Jones would represent him. Later miller called on Jones and at Miller's request Jones, on November 30, 1917, wrote on a Western Union form—directing the Company to send it 'subject to the terms on back hereof,' the following telegram addressed to the plaintiff at 5767 Shafter Avenue, Oakland, California, where the plaintiff lived:

'Miller advises Idaho National sold to Pacific offers me ninety dollars per share otherwise wait year and chances of liquidation says if fails to get two thirds stock liquidation will follow Will you take ninety dollars per share for yours I am inclined to accept offer for mine Answer.'

The form had been filed with the Interstate Commerce Commission and the Commission had approved the provisions and rates that it set forth. Among the terms on the back of the form were the following:

'To guard against mistakes or delays, the sender * * * should order it repeated, that is, telegraphed back to the originating office for comparison,' an additional half rate being charged. 'Unless otherwise indicated on its face, This is an unrepeated telegram and paid for as such, in consideration whereof it is agreed * * * 1. The Company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated telegram, beyond the amount received for sending the same. * * * 2. In any event the Company shall not be liable for damages for any mistakes or delays in the transmission or delivery, or for the nondelivery, of this telegram, whether caused by the negligence of its servants or otherwise, beyond the sum of fifty dollars, at which amount this telegram is hereby valued, unless a greater value is stated in writing hereon at the time the telegram is offered to the Company for transmission, and an additional sum paid or agreed to be paid based on such value equal to one-tenth of one per cent. thereof.'

This telegram was an unrepeated message of the class known as night letter, and was not specially valued or paid for upon a value in excess of $50. It was the duty of the receiving clerk, Margaret Brown, to indorse her initials the filing time and the amount of toll received, and to place the message on the sending hook for transmission. By inadvertence, although a competent clerk, she put it in a file of earlier messages instead of upon the hook, and it was not sent. The next day Jones's son inquired at the telegraph office for an answer and being told that there was none, asked if they had sent the telegram and was answered yes. On December 3 he asked again and was told that the plaintiff had received the message. Miller was ready and willing to buy the stock until December 5, 1917, and the plaintiff testified that he would have sold if he had received the telegram. Later the stock became worthless. The District Court found that there was no gross negligence but the Circuit Court of Appeals distinguished between a failure to take the first step toward transmission and some later neglect, held that the failure was not and as a matter of public policy could not be within the protection of the terms that we have stated and held the company liable for $4,500 with interest at seven per cent. from June 18, 1918, on which day the plaintiff made a demand.

The plaintiff, the respondent here, does not deny that he is bound by the terms that we have recited. That was assumed below and is established law. Western Union Telegraph Co. v. Esteve, 256 U. S. 566, 41 Sup. Ct. 584, 65 L. Ed. 1094. Those terms apply as definitely to a...