Frazier v. Western Union Telegraph Co.

78 P. 330 | Or. | 1904

Mr. Justice Bean,

after stating the case in the above terms, delivered the opinion of the court.

Several questions were discussed at the argument, but it is only necessary to notice the contention that the plaintiffs are not entitled to maintain an action against the defendant for negligence in delivering the message addressed to them, because they were not parties or privies to the contract between Weir and the company for its transmission, nor was the company advised by the terms of the message or otherwise that they were the parties for whose benefit such contract was made.

1. In England the doctrine is settled that the addressee of a telegraphic message cannot sue the company for error or negligence in its transmission or delivery, because the obligation of the company springs entirely from the contract between it and the sender, and the addressee is not a party or privy thereto: Playford v. United Kingdom Tel. Co. L. R. 4 Q, B. 705. This doctrine, however, does not prevail generally in this country, and the weight of authority is that the addressee of a message may sue the telegraph company in his own name, and recover such damages as he may have sustained by reason of its negligence, when the message was intended for his benefit, and the company had knowledge of that fact: 2 Shearman & Red., Negligence (5 ed.), § 543; Gray, Com. by Tel. §’ 65; Thompson, Law of Electricity, § 427; Joyce, Electric Law, § 1008; 21 Enc. PI. & Pr. 509.

2. A telegraph company is not a common carrier in the sense that it is an insurer against mistakes in the transmission of messages or delay in their prompt delivery, but it is an instrument of commerce and a public service corporation. It therefore owes the duty to those for whose benefit it undertakes to transmit and deliver messages to transmit and deliver them without unreasonable delay. For a violation of this duty, or for a negligent performance thereof, it is responsible to the party for whose benefit the contract was made, whether it be the sender or the addressee : 27 Am. & Eng. Enc. Law (2 ed.), 1024 ; Thompson, Electricity, § 427; Postal Tel. Cable Co. v. Barwise, 11 Colo. App. 328 (53 Pac. 252); Webbe v. Western Union Tel. Co. 169 Ill. 610 (48 N. E. 670, 61 Am. St. Rep. 207); McPeek v. Western Union Tel. Co. 107 Iowa, 356 (78 N. W. 63, 43 L. R. A. 214, 70 Am. St. Rep. 205).

But the right of an addressee to recover is necessarily grounded upon the contract between the company and the sender, whether the action be in form technically for a breach of contract or one sounding in tort. Without the contract under which the message was forwarded as a foundation for the cause of action, no recovery whatever could be had. In order for the addressee to sue, it is essential, therefore, that it appear that he was to be benefited by the contract for sending" the message, and that fact was known to the company when.it received the message for transmission, either from its language or otherwise. The addressee can maintain- an action only on the theory that he was the party intended to be benefited by the contract between the sender and the company, and that he is injured by a failure to perform such contract. Messrs. Shearman & Redfield say that the. right of an addressee of a telegraphic message to sue for the negligence of the company, either in its transmission or delivery, rests on the principle that, where two persons make a contract for the benefit of a third person, such third person may sue upon it: 2 Shearman & Red., Négligence (5 ed.), § 543. Under this doctrine the right of an addressee to sue does not exist unless the sender of the message and the company, at the time the contract for its transmission was made, understood that it was for the benefit of such person. Mr. Gray, in his work on Communication by Telegraph, says : “It may be hazarded that the right of the person to whom a message is directed to sue as beneficiary for a breach of the contract to communicate that message— a contract to which he is not a party — will, where it is admitted at all, be restricted to the comparatively small class of cases in which the person who employs a telegraph company to communicate a message does so solely to benefit the person to whom the message is directed; for where the person who employs a telegraph company to communicate a message does so to benefit himself there is no ground for the interpretation that he intends to part with his right of action for a breach of the contract”: Gray, Com. by Tel. § 67. Mr. Groswell says: “To give the addressee the benefit of this rule, it must appear either from the language of the message or the circumstances under which it is sent, and which are known to the telegraph company, that the message is sent for the benefit of the addressee”: Croswell, Electricity, § 457.

The Supreme Court of Texas, in Western Union Tel. Co. v. Adams, 75 Tex. 531 (3 Am. Electl. Cas. 768, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920), in discussing this question, says: “We think the question as to who may maintain a suit for damages for the breach of contract does not depend upon the payment of the fee, nor upon the question whether the sender had been previously constituted an agent for that purpose by the party to whom the dispatch is sent, but who in fact was to be served and who is damaged. If it was intended to serve the'receiver, and he accepts the act, we are unable to see why the telegraph company should be excused from the consequences of its neglect to discharge its own duty by reason alone of its ignorance of the relations that may exist between the sender and the receiver of the message.” In Western Union Tel. Co. v. Wood, 57 Fed. 471 (6 C. C. A. 432, 4 Am. Electl. Cas. 838, 21 L. R. A. 706), and Butner v. Western Union Tel. Co. 2 Okl. 234 (5 Am. Electl. Cas. 758, 37 Pac. 1087), it is held that a person to whom a telegraphic message is directed cannot recover against the company for a failure to deliver when he is not a party to the contract under which it was sent, and when the company is not informed, either by the terms of the message or otherwise, that the contract was for his benefit.

3. The liability of a telegraph company for damages resulting from error in the transmission or failure to deliver a message promptly is limited to such as may fairly be considered according to the usual course of things to have arisen from the breach of the contract actually made between i.t and the sender, and which both parties must reasonably have understood and contemplated, when making the contract, would be likely to result from its breach. It is accordingly quite generally held that in an action for a failure to transmit correctly or deliver promptly a cipher, or unintelligible dispatch, when the company is not informed of its nature, or the importance or extent of the business to which it relates, the measure of damages is merely the sum paid for sending it: 27 Am. & Eng. Enc. Law (2 ed.), 1062; Primrose v. Western Union Tel. Co. 154 U. S. 1 (5 Am. Electl. Cas. 809, 14 Sup. Ct. 1098). This is on the theory that the measure of the company’s responsibility depends upon the nature and character of the contract, its knowledge of special circumstances and of the purpose of the dispatch which it agrees to transmit and deliver. In a word, the measure of its responsibility is determined by the contract which it makes with the sender of the message. Now, if the proper criterion by which to determine the measure of responsibility of the company in the matter of damages is the contract between it and the sender, it would seem clear that upon the same principle the person or persons to whom it is to be liable must be ascertained from the same source, and that it is liable only to such persons as it may have expressly agreed to serve, or who are the beneficiaries of the contract made with it, and such we believe to be the decisions.

4. An exhaustive examination of the cases holding that the addressee of a telegraphic message may sue the company for negligence discloses that in all of them the company knew or was chargeable with knowledge that the message was for his benefit. No case has come under our observation where the addressee was permitted to sue under any other circumstances. On the contrary, those already cited show that he has been denied relief where the contract was not for his benefit. In the present case the message sent by Weir to the plaintiffs does not disclose that they were the parties intended to be benefited by the contract between him and the company for its transmission and delivery, or that they had any interest whatever in the subject-matter, nor was the company otherwise advised of that fact. The message is a mere direction from Weir to the plaintiffs to perform some act for him, and the company could not have understood from it that it was intended for the benefit, of the plaintiffs, or that they would be injured by its nondelivery. If the message had been directed to them as real estate brokers, or if the company, at the time it received and agreed to transmit it, knew that they were engaged in that business, or if the message had simply a,dvised them that Weir would take the Shepard farm at the price named, without more, the facts might possibly bring the case within the doctrine of some of the decisions holding that an addressee may sue the company for negligence in not delivering the message. The message in question, however, is not of that character. It indicates on its face that it was sent for the benefit of Weir, and therefore it cannot be held that the contract between Weir and the company for its transmission was made for the benefit of the plaintiffs.

The judgment will be affirmed. Affirmed.