Given v. Western Union Tel. Co.

| U.S. Circuit Court for the Southern District of Iowa | Jun 11, 1885

Miller, Justice.

The foundation of plaintiffs claim is that by the negligence of the defendants in conveying and’ delivering those messages he lost employment as editor of the Denver Tribune, which he would otherwise have secured, and that as another man did by reason of this negligence get that employnent, for which he received from $4,000 to $5,000 for a period of time during which plaintiff only received a much smaller sum, he is entitled to recover the difference in this action.

The first subject of inquiry, therefore, is the existence of such negligence as would make defendant liable for any damages. The first act of negligence charged to the defendant has relation to the delivery at Des Moines of the message from Patterson to plaintiff. It is said that the duty of the company was, immediately upon the receipt of the telegram, to deliver it at the office of the governor, which was the usual business place of plaintiff; and to make this duty clearer, it is said that instructions were given by plaintiff to the company that all messages for him should be delivered there. The testimony does not sustain this assertion. The person to whom said directions should have been delivered says he received no such instruction, and other clerks and employes in the office of the company say the same .thing. The plaintiff, who gives the only testimony on this subject, says that he at some time, not very definitely fixed, sent word by one of the messengers to have all dispatches for him sent to the office of the governor’s private secretary, which he was. But this was merely a verbal instruction or request to the messenger, which he may haye construed as given for his own government, and which, if intended to govern the actions of the company, was not delivered to the proper person. The duty of the messenger was to deliver messages from the telegraph office, not to it. For the latter'purpose he was the agent of the plaintiff and not the defendant. Besides, the proper mode of directing the company on that subject is so obviously to have notified it or sent to it directions in writing, that a casual statement to a messenger, at some other place than the office, cannot be relied on to fix upon that company any legal obligation.

It is next argued that the previous course of business between the parties made it the duty of the company to send the dispatch to that office; and, in support of this, the evidence of plaintiff shows that, as private secretary of the governor, he had been in the habit of receiving telegraphic messages from that company at that place, and nowhere else, and that there, he received also telegrams of his own on private business. But it is not stated that any such private messages had been there delivered and received for him when he was absent from the city, or that the company had any reason to suppose that in such case he wished them to be delivered there. In the instance now in question, the defendant communicated with the governor’s office by telephone, and received information, which was true, that plaintiff was out of the city, and would be absent two days. The men in charge of the telegraph office sent the message to the residence of plaintiff, where it was received by his wife in due time, and telegraphed to Patterson, the sender of the message, the information of plaintiff’s absence from the city. For both these acts the defendant is blamed. In both of them we think the defendant did its duty. Its first obligation was to the sender of the message. It was proper he should be informed of the absence from the city of the party to whom it was sent, as it asked him to come to Chicago that night.

Without elaborating the matter we are of opinion, that when informed that plaintiff was out of the city, and would be for two days, the company did the precise thing which it ought to have done, namely, delivered the message to his wife at his residence, and thus enable her, the most likely of all persons in the world to know where her husband was, to send the message to him immediately. If she did not know where he was, it was the fault, if fault was in any one, of the plaintiff, who had neglected to inform her. The dispatch remained in her hands from 4: 30 p. m. until 7:09 p. m., and during this time the golden opportunity was lost. We think this was contributory negligence sufficient to defeat the action. For, even if, after this delay, when Josiah Given, father of plaintiff, undertook, at 7 o’clock p. m., to communicate with plaintiff, he had transmitted the original message, instead of ah inquiry as to where it should be sent, the former would have been received in time to enable him to go to Chicago that night. It is not easy to see, when all parties were aware of the necessity of such prompt action, why the original message was not sent, instead of an inquiry to the same person as to where it should go. The delay thus occasioned defeated the only other chance for his going to Chicago that night.

But it is urged that there was negligence in sending the message to Marshalltown, when the father of plaintiff finally offered this original message for transmission. The office in Marshalltown, by custom or by orders from its superiors, closed at 9 o’clock p. ar. Defendant produces the record of the dates of receiving, filing, and delivering messages, and the evidence of the receiving clerk, which show that this message was filed in the office at 9 o’clock, and therefore too late for transmission that night to Marshalltown. Also the date of its filing on the message itself, with proof that those entries are made truthfully, and in due course of business.

Mr. Josiah Given testified, on the other hand, that he was in the office at 8:15 p. ar., and there received the dispatch directing him to send the original message to plaintiff at Tremont House, Marshall-town. He says this, because he looked at his watch when he left the court-house to go to the telegraph office. He further testifies that, when he received his dispatch from his son, he began to repeat the message from Patterson, writing on a blank which had been given to him, but which he discovered was for a night message. He said he must have a day-message blank, as it was important, and must be sent at once. It was then suggested that the message might be repeated from the one already in the office, and this was determined on. How long a time all this occupied, with the walk from the court-house, the receipt and examination of the message from plaintiff to his father to forward the dispatch to the Tremont House, the change of blanks, and the conversation, no one can tell. As the onus of proving the blame rests on the plaintiff, we cannot say that any unnecessary delay by the office prior to 9 o’clock is established.

It is said that the object might have been accomplished if those in charge of the office at Des Moines had known that the office at Mar-shalltown closed its business at 9 o’clock, and had communicated that fact to Josiah Given. It was shown that they did not know this, and that they were not furnished with means of knowing when the offices of the company closed for the night at other places than Des Moines. The want of this information is assigned for negligence. But we do not see any sufficient reason for believing that if Mr. Josiah Given had been told, when he offered his last message, that the office at Marshalltown was closed for the night, that he could have provided any other means of repairing the evil, and so the information, if communicated to him, would have done no good. Nor do we see that it is thedutyof theWestern Union Telegraph Company to keep theemployes of every one of its offices in the United States informed of the time when every other office closes for the night. The immense number of these offices all over'the United States, the frequent changes among them as to time of closing, and the prodigious volume of a written book on this subject, seem to make this onerous and inconvenient to a degree which forbids it to be treated as a duty to its customers, for neglect of which it must be held liable for damages. There is no more obligation to do this in regard to offices in the same state than those four thousand miles away, for the communication is between them all, and of equal importance.

The question of the remoteness of the injury, and want of any satisfactory measure of damages, has been ably discussed, and is one of much interest; but as we are of opinion that no such negligence is shown as to render defendant liable at all, we forbear to consider, that que, Ton, and render judgment for the defendant