Western Union Telegraph Co. v. Eubanks & Russell

• Decision Date: 04 February 1897
• Citation: 100 Ky. 591
• Parties: Western Union Telegraph Co. v. Eubanks & Russell.
• Court: Kentucky Court of Appeals

100 Ky. 591

Western Union Telegraph Co. v. Eubanks & Russell.

Court of Appeals of Kentucky.

February 4, 1897.

APPEAL FROM SIMPSON CIRCUIT COURT.

A. S. WALKER, GEO. HARRIS AND GEO. H. FEARONS FOR APPELLANT.

RICHARDS, WEISSINGER & BASKINS ON SAME SIDE.

GOODNIGHT & ROARK AND SIMS & COVINGTON FOR APPELLEES.

RICHARDS, BASKIN & RONALD IN PETITION FOR REHEARING.

JUDGE GUFFY DELIVERED THE OPINION OF THE COURT.

It is substantially alleged in the petition in this action that appellees were partners in the live stock business and that appellant was a common carrier of messages and telegrams. That on the 21st December, 1893, plaintiff's agent, H. P. Russell, at Atlanta, Georgia, delivered to defendant to be transmitted to plaintiff at Franklin, Ky., the following telegram or message, viz:

                                          Atlanta, Ga., Dec. 21, 1893
                

J. W. Russell, Franklin, Ky.:

                  Ship to-day eighty-five dollar load, will make money
                feeling good.                      H. P. RUSSELL
                

for which message defendant received pay and undertook and agreed to transmit same to plaintiff at Franklin, Ky. That the same was received by defendant at Atlanta in ample time to be transmitted to plaintiff — in ample time for them to have shipped the car load of mules on that day to Atlanta, but said message or telegram was not delivered to plaintiff until too late to ship said mules. That it was not delivered to plaintiff until after dark, about seven o'clock, when it could have been delivered early in the morning on said day and it could easily have been delivered in time for plaintiff to have shipped said car load of mules on that day; but defendant through the negligence and incompetency of its agents, employes and operators then in its employment and in charge of and operating its line and business failed to deliver said message until seven o'clock and after dark of said day. The said failure to deliver the message in time was caused alone by the negligence and incompetency of defendant's agents and employes.

That if they had received said telegram at the time it should have been delivered, they could and would have shipped said car load of mules, twenty-five in number, to Atlanta, Ga., and said mules would have arrived in Atlanta, Ga., at a time when the market was high and good, that they could and would have sold said car load of mules, if same had been shipped on day telegraphed for, for $250 more than they could and did sell them for when shipped later. That if said mules had been shipped on December 21, they would have arrived in Atlanta, on December 23, 1893, when the market was good and when they could and would have sold said mules for a good price; but by the negligence of defendant's agents and employes they were thus prevented from shipping and said mules did not get to Atlanta till the following Tuesday, when the market had declined.

That they have been damaged by defendant's negligence in the sum of $250, for which sum judgment was prayed.

The first paragraph of the answer may be taken as a denial of all the averments contained in the petition, including a denial of the charge, that appellant was a common carrier, but does not deny that it is a corporation engaged in transmitting messages and that it can sue and be sued.

It is averred in the second paragraph that appellant received of H. P. Russell individually not as agent for plaintiff at one o'clock and five minutes, December 21, 1893, the message heretofore copied except the word "the" before eighty, and files the original message marked "A." It is further averred that in receiving and transmitting messages with the best of operators and under the most favorable circumstance there is always some liability and probability of mistake and especially as in this case when the message had to be transmitted several hundred miles and through relay offices. That mistakes and delays are inseparable from the nature of the business. That H. P. Russell when he delivered the said message to defendant to be sent as aforesaid requested defendant to send said message subject to the terms on the back thereof, which he then agreed to and he was directed on the face of said message to "read the notice and agreement on the back," which notice and agreement solemnly signed and made by him is in the following words, viz.:

"All messages taken by this company are subject to the following terms:"

"To guard against mistakes or delays, the sender of a message should order it repeated; that is telegraphed back to the originating office for comparison. For this one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated message, beyond the amount received for sending the same; nor for any mistake or delay in the transmission or delivery or for non-delivery of any repeated message beyond fifty times the sum received for sending the same, unless specially insured, nor in any case for delays arising from unavoidable interruptions in the working of its lines, or for errors in cipher or obscure messages;" "and this company is hereby made the agent of the sender, without liability to forward any message over the lines of any other company when necessary to reach its destination. Correctness in the transmission of a message to any point on the lines of this company can be insured by contract in writing, stating agreed amount of risk, and payment of premium thereon, at the following rate in addition to the usual charge for repeated messages, viz.: one per cent. for any distance not exceeding 1,000 miles, and two per cent. for any greater distance. No employe of the company is authorized to vary the foregoing."

"No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices; and if a message is sent to such office by one of the company's messengers, he acts for that purpose as the agent of the sender."

"Messages will be delivered free within the established free delivery limits of the territorial office." "For delivery at a greater distance, a special charge will be made to cover the cost of such delivery.

"The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission."

It is alleged that all the foregoing was legible and plain and so far as it could apply to the sending of the message was agreed to by H. P. Russell and that he did not request that the message be repeated, but assumed the risk of mistake and delay, and paid only fifty-eight cents for the transmission, which was the usual charge for such messages not repeated.

It is further alleged that no claim in writing has ever been presented to defendant for damages, unless this suit be so considered. The suit was filed more than sixty days after the filing of the message. That the message by some mistake was received at the Franklin office as to J. A. Russell at 2:05 p. m., and was immediately sent out by the messenger boy to be delivered to J. A. Russell, but he could not be found, and about 6 p. m. on the suggestion of some one acquainted with the people of Franklin the message was delivered to J. W. Russell. It is also alleged that when J. W. Russell received the message that he received notice of the contract, as before set out and all the foregoing facts are pleaded in bar of plaintiff's claims but appellant admits that plaintiff or at least J. W. Russell is entitled to fifty-eight cents. That getting the word J. A. instead of J. W. caused the delay in the delivery of the message.

In appellant's amended answer it is alleged that if the message had been promptly delivered that appellees could not have shipped the mules on that day. That they had no mules in or near Franklin on that day, but did get the message in time to have shipped the mules on the next...