Western Union Telegraph Co., Inc. v. Hall

• Decision Date: 06 February 1923
• Docket Number: 2012.
• Citation: 287 F. 297
• Parties: WESTERN UNION TELEGRAPH CO., Inc., v. HALL.
• Court: U.S. Court of Appeals — Fourth Circuit

287 F. 297

WESTERN UNION TELEGRAPH CO., Inc., v. HALL.

No. 2012.

United States Court of Appeals, Fourth Circuit.

February 6, 1923

W Irvine Cross and Eben J. D. Cross, both of Baltimore, Md (Joseph L. Egan and Francis R. Stark, both of New York City on the brief), for plaintiff in error.

Webster C. Tall, of Baltimore, Md. (E. M. Sturtevant, of Baltimore Md., on the brief), for defendant in error.

The plaintiff, in error was the defendant, and the defendant in error was the plaintiff, below, and they will be so referred to herein. This was an action of tort to recover damages laid at $5,000, which arose as follows:

The plaintiff, after serving as an enlisted man in the Navy, was honorably discharged at Mare's Island, Cal., about August 28, 1921, equipped with new clothes, and with ample funds to pay the expenses of the journey to his home in Baltimore. On his way home he stopped in Salt Lake City, and also in Denver, for some time, and again he stopped in Kansas City, Mo., to visit friends. He stayed there until his funds were so far exhausted that he had only about $10 left. On the morning of September 19, 1921, he delivered to one of the numerous agents of the defendant at the office of the company at the Union Station in Kansas City the following telegram:

'1921 Sep 19 a.m. 11:16.

'U.D. Kansas City Mo 941 A 19 Miss Annie D. Shoemack Maryland Casualty Bldg., Baltimore, Md. Wire me fifty dollars for fare care Western Union Co. Union Station Kansas City. Answer quick.

George.'

Miss Shoemack, a clark in the office of the Maryland Casualty Company, was the plaintiff's aunt. She says she received the foregoing telegram about noon of the day it was sent. That evening, about 7 o'clock, having only about $42 available, she deposited at the Charles Street office of the telegraph company in Baltimore the sum of $40 and paid $1.42 for sending a money transfer telegram reading, so far as is material:

'Sept. 19, 1921.

'Pay to Geo. Hall c/o Western Union Co., Union Station, Kansas City, Mo., forty dollars.'

This message was never delivered to the plaintiff. He called at the office of the telegraph company at the Union Station in Kansas City about every two hours during the late afternoon and evening of the 19th, and during the next day. On the 20th he had a telephone inquiry made at the central office of the Western Union Company in Kansas City, but the answer was that nothing had come for him. The next morning about 10 o'clock plaintiff sent to his mother in Baltimore a telegram reading:

'Need fifty dollars to get home. Wire Western Union, Union Station.'

The plaintiff said he had not previously telegraphed his mother, as he did not wish to worry her. Later, on the 20th, no answer having been received either from his aunt or his mother, the plaintiff telegraphed two of his former shipmates at Los Angeles, Cal., asking for money. They answered in effect that they were without means, and advised him to try the recruiting office. On receipt of that telegram the plaintiff did go to the recruiting office in Kansas City, but was unable to obtain assistance there. On the next day the plaintiff again telegraphed his mother, asking if she had received his message, but no reply was received to this telegram. The plaintiff then attempted to secure employment in Kansas City, but, finding a great number of applicants ahead of him, he abandoned efforts in that direction. By that time his money was so nearly exhausted that he did not have enough to pay for another telegram. At one of the uptown offices of the defendant in Kansas City he inquired if he could send a message collect, but met with a refusal. He then made the same effort at the Union Station office of the defendant, but was told there that it was against the rules to send a message collect, unless the sender was identified as being responsible. After the foregoing efforts the plaintiff decided to make his way to Baltimore by riding on railroad trains without paying fare. The plaintiff's numerous disagreeable experiences in thus making his way from Kansas City to Baltimore may be summarized by saying that he was repeatedly ejected from trains; he was chased by railroad detectives, searched by the police, and subjected to great discomfort by riding on platforms and tenders; dogs were set on him; once he was shot at by a farmer, and his clothing was ruined in escaping arrest. The plaintiff was repeatedly searched, and it was due only to his honorable discharge from the navy that he escaped imprisonment. He was eight days on the journey, and during that time he suffered occasionally from hunger.

It appears that Miss Shoemack did not tell the plaintiff's mother of the telegram she had received, in order that his mother might have a pleasant surprise on the arrival of her son, and when on the 20th of September the plaintiff's mother showed Miss Shoemack the telegram she had had from plaintiff, requesting money, Miss Shoemack explained that she had already sent the plaintiff the money he needed, and said that it would be unnecessary for the mother to make any reply to plaintiff's telegram. On Wednesday night, when Miss Shoemack came home, she found that the plaintiff's second telegram to his mother had been received, and strangely enough concluded that the plaintiff had received the money from her, and was telegraphing for more money. But this conclusion for some reason led to no result, other than a belated telegram of inquiry which reached Kansas City after the plaintiff had left there. It was not until the 23d that Miss Shoemack learned that her message of the 19th had not been delivered to the plaintiff in Kansas City. On this date the $40 deposit was returned to her.

The explanation given by the only witness introduced by the defendant of the failure to deliver the money transfer message from Miss Shoemack is that the employee of the company in Baltimore who undertook to send the message omitted to address it to the Union Station. There was no explanation offered of the reason why plaintiff's inquiry for a telegram for him, made by telephone at the central office of the telegraph company in Kansas City, was fruitless. The witness suggested as a possibility that the message had been improperly filed. During the eight days of the plaintiff's journey he did not communicate with any of his family.

The trial resulted in a verdict of $900 for the plaintiff. On motion to set it aside the court required the plaintiff to remit $500 thereof, and judgment was entered for $400 and costs.

Before KNAPP and WADDILL, Circuit Judges, and McDOWELL, District judge.

McDOWELL District Judge (after stating the facts as above).

In telegraph cases, as in other negligence cases, liability for negligence (which is not wanton, willful, or malicious) is confined to compensation for such losses and other injuries as should reasonably have been foreseen by an ordinarily prudent person as the natural and probable consequence of such negligence in the light of the attending circumstances. In Milwaukee, etc., R. Co. v. Kellogg, 94 U.S. 469, 475 (24 L.Ed. 256), it is said:

'But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.'

But in telegraph cases, because of the meagerness of the information usually given to the agents of the telegraph company, questions of notice of facts making special damages recoverable are very frequently of great nicety, and have led to much contrariety of opinion. Where a telegram offered for transmission is in cipher and wholly unintelligible to the agents of the telegraph company, it of itself does not put the telegraph company on notice that a failure to deliver such message will probably be followed by any loss or injury, other than the amount of the fee paid for the transmission of the message. See Primrose v. Western Union Telegraph, 154 U.S. 1, 29, 14 Sup.Ct. 1098, 1106 (38 L.Ed. 883). This was an action in tort, in which, as one of two reasons for confining the recovery to the amount paid for the transmission of an incorrectly transmitted cipher message, the court said:

'Beyond this, under any contract to transmit a message by telegraph, as under any other contract, the damages for a breach must be limited to those which may be fairly considered as arising according to the usual course of things from the breach of the very contract in question, or which both parties must reasonably have understood and contemplated, when making the contract, as likely to result from its breach. This was directly adjudged in Western Union Tel. Co. v. Hall, 124 U.S. 444.'

In the case at bar the defendant negligently failed to deliver to the plaintiff Miss Shoemack's money transfer message. Miss Shoemack acted as the plaintiff's agent in attempting to send this message. Two items of pecuniary loss were not only the probable, but the direct and inevitable, results of the failure to deliver the message. These were (1) the charge made for the message; and (2) interest on the money deposited with the telegraph company from the day it was deposited until the date of its return. Under the evidence the plaintiff had, as a matter of law, a right to recover at least these small sums.

Whether or not the defendant is liable for other indirect consequential, injuries or losses depends on a question of notice. If the defendant had been put on notice of circumstances such as would reasonably have led an ordinarily prudent person to anticipate such losses or injuries as a natural...