Whitehill v. Western Union Telegraph Co.

• Decision Date: 04 April 1905
• Docket Number: 5,293.
• Citation: 136 F. 499
• Parties: WHITEHILL v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. District Court — Eastern District of Arkansas

136 F. 499

WHITEHILL v. WESTERN UNION TELEGRAPH CO.

No. 5,293.

United States Circuit Court, E.D. Arkansas, Western Division.

April 4, 1905

X. O Pindall and Vinson & Wooten, for plaintiff.

Rose Hemingway & Rose, for defendant.

S. O Courtney sent the following message from Arkansas City, Ark to Blytheville, Ark., over the lines of defendant, addressed to Mrs. Belser: 'Joe Whitehill died this morning. Tell Nely. (Signed) S. O. Courtney. ' The complaint alleges that 'Nely' is the plaintiff, Cornelia Whitehill, and the sister of Joe Whitehill, mentioned in the telegram. It is charged that the telegram was never transmitted nor delivered, and she seeks in this action to recover damages sustained by her. Originally, the action was instituted in one of the state courts, but by the defendant removed to this court upon the ground of a diversity of citizenship. The answer denies a failure to transmit or deliver the message, but, on the contrary, alleges that it was transmitted and delivered. In the third paragraph of the answer the defendant pleads that, though the said telegram was duly transmitted and delivered, although perhaps not promptly, one of the conditions upon which the message was accepted and sent provided that '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,' and that plaintiff did not present any claim in writing to the defendant within 60 days after the said message was filed with the defendant for transmission. Plaintiff demurs to this last paragraph of the answer.

TRIEBER District Judge (after stating the facts).

Under the practice prevailing in the courts of the state of Arkansas, a demurrer to a plea goes back to the first defective pleading. Logan v. Moulder, 1 Ark. 320, 33 Am.Dec. 338; Yell v. Snow, 24 Ark. 554. It is therefore necessary to determine whether the complaint states a cause of action. As the plaintiff was neither the sender nor the addressee, it is contended on behalf of the defendant that she cannot maintain this action. In McCormick v Western Union Telegraph Co., 79 F. 449, 25 C.C.A. 35, 38 L.R.A. 684, and Western Union Telegraph Company v. Schriver, 129 F. 344, 64 C.C.C. 96, the United States Circuit Court of Appeals for this circuit held that a telegraph company cannot be held liable to a stranger to the company and to the telegram, one to whom it owes no duty whatever. But in neither of these cases did the message, as delivered to the company, show on its face that it was intended to be communicated to the party complaining, as is alleged and charged to have been the case in this action. In the McCormick Case the telegram was addressed to one Frink, and read, 'May draw $2,500 at sight.' By some error or mistake in transmission, the message, when delivered to Frink, read, 'May draw $7,500.00 at sight.' McCormick, a stranger to the telegram, cashed the draft of Frink for $7,500 in reliance upon the telegram, and, only $2,500 being paid by the sender of the telegram, sought to recover from the telegraph company the difference. In the Schriver Case a forged telegram was transmitted in the name of the Bank of Denison to the Commercial Bank of Britt, Iowa, that it would honor a draft for Barnes for $8,972. Schriver, a stranger to the telegram, sold Barnes cattle, taking his draft on the Bank of Denison for the same, in reliance on that telegram. As in neither of these cases was the telegraph company advised, either by the contents of the telegram or the parties sending them, that any persons other than the addressees were interest in them, they are clearly distinguishable from the case at bar. The question the court now is called upon to determine is whether a telegraph company, accepting a message for transmission which shows on its face that it is to be communicated to a third person, or is for the benefit of a third person, is liable for its negligence in failing to transmit and deliver such telegram to such third person. While there is some conflict among the reported cases on that question, the decided weight of authority, and, in the opinion of this court, the most convincing reasoning, is in favor of the rule that the person for whose benefit the message is sent, if that fact is apparent from the telegram itself, may maintain an action for damages sustained by reason of the negligence of the company. A few of the cases on that subject are: Western Union Tel. Co. v. Adams, 75 Tex. 531, 12 S.W. 857, 6 L.R.A. 844, 16 Am.St.Rep. 920; Western Union Tel. Co. v. Coffin, 88 Tex. 94, 30 S.W. 896; Landie v. Western Union Tel. Co., 124 N.C. 528, 32...