Western Union Telegraph Company v. Short

• Citation: 14 S.W. 649,53 Ark. 434
• Parties: WESTERN UNION TELEGRAPH COMPANY v. SHORT
• Decision Date: 18 October 1890
• Court: Supreme Court of Arkansas

14 S.W. 649

53 Ark. 434

WESTERN UNION TELEGRAPH COMPANY v. SHORT

Supreme Court of Arkansas

October 18, 1890

APPEAL from Hempstead Circuit Court, W. E. ATKINSON, Special Judge.

Judgment reversed and cause remanded.

U. M. & G. B. Rose and Smoote & McRae for appellant.

1. It was error to hold that the stipulation in regard to repeating messages was contrary to public policy and void. The distinction between the liability of common carriers and other bailees is well stated in 13 Allen, 232. See also Gray on Com. by Tel., sec. 6; 48 N.Y. 132; 113 Mass. 301; Allen Tel. Cas., 5; 41 N. Y. (2 Hand), 576; 15 Mich. 525.

The stipulation against liability for errors in unrepeated messages is valid, and where the evidence shows a mere error in transmission, with nothing to indicate fraud, intentional wrong or gross negligence, no recovery, can be had. 84 Eng C. L. R., 3; 13 Allen, 235; 112 Mass. 73; 113 Mass. 301; 137 Mass. 463; 45 Barb. 274; 48 N.Y. 132; 45 N.Y. 751; 1 Metc. (Ky.), 164; 29 Md. 232; 15 Mich. 525; 37 Mo. 472; 27 Iowa 433; 1 Am. Rep., 285; 13 A. & E. Corp. Cas., 585; 78 Pa. St 238; 5 S.C. 377; 19 S.C. 84; 11 Neb. 87; 89 N.C. 334; 66 Cal. 579; 52 Tex. 283; 18 Hun, 157; 18 F. 717; 14 F. 710; Allen, Tel. Cas., 690.

These cases establish: 1, that a stipulation limiting liability in cases of unrepeated messages is valid; and 2, that the mere existence of an error on the face of a telegram delivered does not cast upon the company the burden of explanation.

2. The rule of damages was erroneous. Only such as in contemplation of the parties are reasonably incident to the breach can be recovered. 9 Exch., 354; 48 Ark. 509; 45 N.Y. 751; 54 Barb. 505; 29 Md. 232; Allen's Tel. Cas., 390; 8 Biss., 131. Where the face of the dispatch does not indicate that the sender is liable to sustain loss if the dispatch is not promptly forwarded, or a mistake made in transmission, and the company is not so informed, it is liable for nominal damages only. Cases supra, and Allen's Tel. Cas., 5; 61 Tex. 452; 8 A. & E. Corp. Cas., 123; 30 Ohio St. 555; 34 Wis. 471; 16 Nev. 223; 32 Barb. 530. Speculative damages cannot be recovered. 58 Tex. 395; Allen's Tel. Cas., 61; 32 Barb. 530.

R. B. Williams for appellee.

Cites 37 Ohio St. 301; 60 Ill. 421; 74 Ill. 168; 68 Ga. 299; Allen's Tel. Cas., 471; 58 Tex. 170; 62 Me. 209; 60 Me. 9; 33 Wis. 558; 34 Wis. 471; 58 Ga. 433; 57 Tex. 283; 14 Am. Rep., 38; 45 Am. Rep., 480; 44 Am. Rep., 610, 589.

OPINION

BATTLE, J.

On the 24th day of July, 1886, the Western, Union Telegraph Company was engaged in the business of operating a telegraphic line between Bonham, Texas, and Hope, Arkansas. Prior to that day C. T. Short was recognized to appear as a witness in a case pending in court at Bonham, and known as Seaton's case. Desiring to be present when called as a witness, he wrote to Lusk & Thurman, attorneys at Bonham, to notify him of the day upon which the case was set for trial. Not hearing from them by mail, he requested them to notify him by telegram. On the 24th of July, 1886, Lusk & Thurman delivered at Bonham, to the Western Union Telegraph Company, a message notifying him that the case was set for August 17th. It was delivered written upon one of the printed forms of the Western Union Telegraph Company. A portion of the form and the message as it was written in the form are as follows: "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, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for the non-delivery of any repeated message beyond fifty times the sum received for sending the same, unless specially insured; nor in any case of delays arising from unavoidable interruption 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. * * * * * *

"Send the following message subject to the above terms which are hereby agreed to:

BONHAM, TEXAS, July 24, 1886.

To C. T. Short, Nashville, Ark.

Seaton's case is set for Saturday, August the seventeenth.

LUSK & THURMAN."

The telegram as delivered was intended to notify Short, and so specified upon its face as delivered to the company at Bonham, that Seaton's case was set for the 17th of August. A telegram was transmitted and delivered to Short by the company at Nashville, Arkansas, upon a form the same as that upon which the message was written. The message received differed from the one delivered at Bonham in this: The one received by Short specified the seventh of August as the day upon which Seaton's case was set for trial, and the one delivered to the company specified the 17th of August. Short did not have the telegram repeated; but acting upon it as he received it went to Bonham, in obedience, as he supposed, to his recognizance, and reached there on the 6th of August, and found that Seaton's case had in fact been set for the 17th of August, as specified in the message delivered to the company by Lusk & Thurman.

Short sued the Western Union Telegraph Company for $ 422.35, the amount of the damages he alleged he suffered on account of the failure of the defendant to send the message as it was delivered to it. In the course of the trial of his action, an agreed statement of the foregoing facts was read in evidence, and he testified, over the objections of the defendant, as follows: "It took me six days to go to Bonham and return. At this time (when the message was received) I was running a saw mill near Nashville, Ark. and superintending the business of the mill. In going to Texas as a witness in response to said telegram as delivered to me, it became necessary for me to stop my mill operations as there was no one else to manage it for me. The value of my time during the six days that I was absent was fifty dollars. My railroad fare to Bonham, Texas, and return was $ 13.35. My hotel bills on this trip were $ 9.00. And during that time my teams for hauling stock and lumber were idle, and their services, if I had been at home, would have been worth $ 75.00, and it cost me during that time $ 25.00 to feed them, and I lost the services of a valuable man by which I was damaged in the sum of fifty dollars ($ 50.00). At the time, my mill was cutting upon an average 15,000 feet of lumber per day, at a cost of $ 4.75 per thousand, which I was selling at $ 8.50 per thousand, and had more orders and contracts to furnish lumber than I could fill, and by reason of the stoppage of my mill during the six days of my absence, as above stated, I lost the profits I would have made in cutting lumber during that time, which I estimate at the sum of two hundred dollars."

The result of the trial was a verdict and judgment in favor of the plaintiff against the defendant for the sum of $ 422.35. The defendant saved exceptions and appealed.

The court below held that the stipulation in the printed form upon which the message in question was delivered, as to the liability of the appellant for mistakes or delays in the transmission or delivery, or for the non-delivery, of unrepeated messages, was contrary to public policy and void, and so instructed the jury. Was this error?

Common carriers of goods and telegraph companies are not subject to the same rule of responsibility. The common carrier is held to the strictest accountability for the safe transportation and delivery of property entrusted to him for safe carriage. In the absence of a contract or regulation limiting his liability he is treated as an insurer against all losses not caused by the act of God or the public enemy. On the other hand, in the absence of a contract or regulation fixing the liability of telegraph companies, they are not held responsible as insurers of absolute safety and accuracy in the transmission of messages as against all contingencies, but, holding themselves out to the public ready to transmit all messages delivered to them, they are bound to furnish suitable instruments and competent servants, and to use ordinary care and diligence in transmitting messages, and for any failure to use such care and diligence they are responsible to those sustaining loss or damage thereby. They are, however, not liable for the want of any skill or knowledge not reasonably attainable in the present state of telegraphy, "nor for errors resulting from the peculiar and unknown condition of the atmosphere, or any agency from whatever source, which the degree of skill and care spoken of is insufficient to guard against or avoid." Little Rock & Fort Smith Telegraph Co. v. Davis, 41 Ark. 79; Fowler v. Western Union Telegraph Co., 80 Me. 381, 15 A. 29; S.C. 6 Am. St. Rep. 211; 2 Shearman & Redfield on Negligence (4th ed.), secs. 537, 539, and cases cited.

Telegraph companies are public agents, and exercise a public employment. They are chartered for public purposes, and are vested with the power of eminent domain, which they cannot lawfully exercise if they are not public agents. By virtue of their public employment it is their duty, for a reasonable consideration, to receive and transmit all messages over their wires with that integrity, skill and...