Western Union Telegraph Co. v. Piper

• Decision Date: 16 December 1916
• Docket Number: (No. 8337.)
• Citation: Western Union Telegraph Co. v. Piper, 191 S.W. 817 (Tex. App. 1916)
• Parties: WESTERN UNION TELEGRAPH CO. v. PIPER.
• Court: Texas Court of Appeals

Page 817

191 S.W. 817

WESTERN UNION TELEGRAPH CO. v. PIPER.

(No. 8337.)

Court of Civil Appeals of Texas. Ft. Worth.

December 16, 1916.

Rehearing Denied January 20, 1917.

Appeal from District Court, Tarrant County; Marain H. Brown, Judge.

Suit by C. W. Piper against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.

Thompson & Barwise, of Ft. Worth, and A. C. Wood, of Houston, for appellant. Williams & Smith and David B. Trammell, all of Ft. Worth, for appellee.

CONNER, C. J.

C. W. Piper instituted this suit against the Western Union Telegraph Company for damages alleged to have been caused by negligence in the transmission of a telegram from Ft. Worth, Tex., to Medicine Lodge, Kan. There is but little controversy over the facts. The telegram, as written and delivered for transmission at Ft. Worth, reads as follows:

          "Fort Worth, Texas, February 6, 1914
                

"C. L. Grigsby, Medicine Lodge, Kansas.

"I can buy load of butcher steers for 5.75 will weigh 730 pounds and make 54 per cent and have good load of red cows weight 730 pounds for 4.85. Wire if you can use either at once. Steers on Mexican order.

                           "C. W. Piper."
                

As delivered to Grigsby in Medicine Lodge, it read:

      "Fort Worth, Texas, February 6, 1914
                

"C. L. Grigsby, Medicine Lodge, Kansas.

"I can buy load of butcher steers for 2.75 will weigh 730 pounds and make 54 per cent and have good load of red cows weight 730 pounds for 4.85. Wire if you can use either at once steers on Mexican order. C. W. Piper."

The delivery was made under the following circumstances as related by Grigsby in his testimony on the trial:

"Mr. Smith, the agent at Medicine Lodge, came into my place of business and says: `Here is a telegram from Ft. Worth. I will stop as I come back from dinner for the answer'— and went on out, and I read the telegram and discussed the matter over with my brother and my meat cutter, and after Mr. Smith finished his dinner he did come back for the answer, and I says, `Haven't you made a mistake on this telegram?' and he says, `No; I have not;' and I says, `You wire back, and if the figures in this telegram are correct, I am going to buy those steers,' and he says, `All right, when I get through I will phone you,' which in the course of an hour and a half or two hours he did; that is, he phoned to my brother. There was nothing further done between myself and Smith."

The "brother," D. S. Grigsby, testified that the agent Smith's answer was:

"I have verified that message, and it is correct as I gave it to you."

Thereupon Grigsby wired Piper to:

"Ship steers immediately, wire me when loaded out."

Piper had no knowledge of the change made in his original telegram, and, on receipt of Grigsby's acceptance or direction, shipped the cattle, which were in due course received and appropriated by Grigsby, who paid therefor at the rate of $2.75 per hundred pounds, as specified in the offering telegram to him. He, however, refused to either pay more, or to surrender the cattle on Piper's demand, when the latter first learned of the mistake that had been made in the transmission of his offer.

To the suit predicated upon this state of facts, the defendant company pleaded, among other things, the general denial, and specially, substantially, as follows:

"(a) That the message referred to by appellee was delivered to and accepted by appellant subject to the terms of a certain written contract by the terms of which it was provided that the appellant should not be liable for mistakes or delays in the transmission and delivery or for the nondelivery of any unrepeated message beyond the amount received for sending same, and that the message as filed was an unrepeated message, and that the appellant was not directed or requested to repeat the same, and that all the appellant received for the transmission of said message was the sum of 90 cents, which was the ordinary and reasonable charge for the transmission of an unrepeated message.

"(b) That the message was an interstate message to be sent from a point in the state of Texas to a point in the state of Kansas, and that by the appellant's established rules and regulations, as the same were in effect prior to June 18, 1910, and are still maintained and established, messages are classified, among other classifications, as repeated and unrepeated messages; that in the case of an unrepeated message appellant does not assume liability beyond the amount charged for sending same, while in the case of a repeated message appellant does not limit its liability to the amount charged for the transmission of the message, but assumes liability for an amount not to exceed 50 times the amount charged for sending same. That for the additional work of repeating the message and the additional risk of liability assumed in the case of a repeated message, the appellant at all times mentioned made, and still makes, an additional charge, equal to one-half of the unrepeated message rate.

"That by the act of Congress of the United States, approved June 18, 1910, Congress entered and assumed charge of regulating the field of interstate communication by telegraph, and conferred upon the Interstate Commerce Commission full power over the rates, charges, classifications, and practices of the telegraph companies, and that the Interstate Commerce Commission, prior to the time of the filing of this message, had knowledge of the rates, charges, and classifications established by appellant Western Union Telegraph Company, and at no time has it sought to change, modify, or disapprove the right of the appellant to charge different rates, but has recognized the right of appellant to charge a higher rate for a greater liability and a lower rate for a less liability.

"That in addition to the above appellant also pleaded that the message was valued at $50 by the sender, and was delivered to it under a certain contract in writing by the terms of which it was provided that the liability of appellant could in no event exceed the sum of $50; that the message was filed by the sender at a $50 valuation, and the rate charged by appellant of the appellee was based on a $50 valuation. That all of the appellant's ordinary rates and tariffs for the transmission and delivery of messages are based upon the assumption that the message is valued at $50, or less, and that in case of a message filed at a specified sum in excess of $50, it was, at all the times mentioned, and still is, the rule, regulation, tariff, and practice of the appellant to charge and collect an additional sum to cover the increased risk of liability, which additional sum is based upon the valuation of the message, and is equal to one-tenth of 1 per cent. thereof.

"It was also pleaded by appellant with reference to this defense that the act of Congress of the United States, approved June 18, 1910, assumed charge of regulating the field of interstate communication by telegraph, thereby removing and exempting such interstate communication by telegraph from the field of state regulation, and conferred upon the Interstate Commerce Commission full power over the rates as pleaded bp appellant with reference to unrepeated messages, and that the Interstate Commerce Commission had full knowledge of the rates, charges, and classifications as established by the appellant, and with such knowledge approved the same, and recognized the right of the appellant to charge a higher rate for a greater liability and a lower rate for a less liability."

The defendant further pleaded contributory negligence on plaintiff's part and collusion between plaintiff and Grigsby and other matter which we find has no substantial foundation in the evidence, and which, therefore, will not be further noticed.

The court sustained the plaintiff's exceptions to the defendant's said special pleas, and, after the introduction of the evidence, gave a peremptory instruction to the jury to find for the plaintiff in the sum of $662.70, the amount of his uncontroverted actual loss. The jury so returned their verdict, and the defendant has appealed from the judgment entered in the plaintiff's favor for the amount stated.

Appellant's negligence in the premises is beyond dispute, and the vital questions urged go to the sufficiency of the special defensive pleas noted in our statement of the case, and appellant presents them both by assignments of error to the action of the court in sustaining the plaintiff's exceptions thereto and by assignments of error to the verdict and judgment. But the form of presentation is deemed to be immaterial, inasmuch as evidence in support of the allegations of the special pleas seems to have been admitted under paragraphs of the defendant's answer to which no exceptions were made. The writer and Justice DUNKLIN, Justice BUCK not agreeing, wish to further observe, as an introduction to our main discussion, that a complete answer to appellant's special pleas that its liability was limited on the ground that the message was unrepeated is found in the undisputed fact that Grigsby directed the message in question to be repeated, and that appellant's agent in Kansas undertook to do so.

A repetition of the message at the instance of Grigsby would inure, as said majority think, to the benefit of Piper and otherwise as fully meet the beneficial purposes of the provision, and be as fully operative and effective as if the message had been repeated upon the plaintiff Piper's procurement. See W. U. Tel. Co. v. Landis (Pa.) 12 Atl. 467. Moreover, our ruling on the other special defenses hereinafter discussed will, we all think, substantially apply alike to all of the special defenses named.

We are thus brought to a determination of the main question of whether, under the circumstances of this case, we should sustain appellant's contention that under the operation of the interstate commerce law its liability herein...