72 Miss. 1030 | Miss. | 1895
delivered the opinion of the court.
The first contention of appellee is, that the sender does not make the telegraph company his agent in such sense that it renders him liable to the sendee in case an altered message is delivered to the sendee. The negative of this proposition is maintained by the English courts, which hold that the liability of the telegraph company arises entirely out of contract, and, hence, that the sendee, not being in privity with the company, can never sue the company. Playford v. Tel. Co., Allen’s Tel. Cas., 437; Henkel v. Pape, Ib., 567. This view is also urged with great clearness and power in Gray on Telegraph,
According to what is called the American doctrine (Gray on Tel., §104, note 3; Thompson on Electricity, §426), the affirmative of the proposition under discussion is maintained, representative among the cases so holding being Rose's Case, Allen’s Tel. Cases, p. 337, in which case the principal was disclosed and the agent not hound. In De Rutte v. Tel. Co., 30 How. Pr. (N Y.), 403, it was held that the party interested in the dispatch, whether sender or sendee, was the one who really contracted with the company, and that such person could sue in contract. In Tel. Co. v. Dryburg, 35 Pa. St., 298, the supreme court held that the company was the agent of both sender and sendee, upon very unsatisfactory reasoning, and, hence, either can sue in contract.
Turning from this view of the right of the sendee to sue the company in contract, and putting the right to sue on the ground that, in case of delivery of an altered message upon which the sendee has acted to his damage, the sendee’s right to sue is in tort for the injury to him, the wrong and the consequent damage, we find this view clearly and universally upheld by the American authorities. Gray on Telegraph, § 78: Thompson on Electricity, §§427, 428, 430, 448; Dryburg’s Case, 35 Pa.
It is also true that the sender may sue the company in as well as in contract, in the case of an altered message. Mr. Cooley says: “In many cases an action as for a tort, or an action as for a breach of contract, may be brought by the same party on the same state of facts.” Cooley on Torts, pp. 103, 104. So, Mr. Bigelow says: “The fact that a contract existed, and was broken at the same time and by the same act or omission by which the plaintiff’s cause of action arose, is only one of the accidents of the situation. The defendant owed, in respect of the same thing, two distinct duties — one of a special character to the party with whom he contracted, and one of a general character to others. . . The duty, therefore, does not grow out of the contract, but exists before and independently of it.” Again: “What does it mean when it is said that even this contractee (appellant answering to the contractee) may sue in tort or in contract for his damages ? Certainly, nothing, unless that the original duty which the defendant, before the contract, owed to all alike, still survives, even towards his contractee.” And, without prolonging this opinion on this point, it is sufficient to refer to Bigelow Lead. Cas. on Torts, pp. 614, 617; also, pp. 586, 587, and to the elaborate discussion in Rich v. Railroad Co., 87 N. Y., 382.
But, whether looked at in the light of contract or of tort, plaintiffs'' case comes inevitably to this: That plaintiffs, at a time when they knew fully of the mistake in the telegram, and when they could have delivered or refused to deliver the cotton, and when — the minds of plaintiffs and of Appleton, Dixon & Co. never having met, and there being, as to this sale, no contract made between them, plaintiffs being, therefore, under no legal liability to deliver the cotton — nevertheless, acting on the sen
The only case holding that the action can be maintained, so far as our research has gone, is Tel. Co. v. Shatter, 71 Ga., 760. The facts in this case are identical with those in Pepper v. Tel. Co., 87 Tenn., supra, where the court, after an elaborate review of the American authorities, say: ‘ ‘As already stated, Mr. Gray not only shows that, upon principle, the English holding is correct, but, while listing the cases above cited as indicating a contrary view, states that most of them are dicta. There is but one case referred to by him which directly adj udges that the sender of a telegram is bound to the receiver by the terms of the message as negligently altered by the company. That is the case of Tel. Co. v. Shatter, 71 Ga., 760. With great respect for the high character of that learned tribunal, we cannot approve the line of reasoning pursued or the conclusion reached. The learned judge places his conclusion, in part, on the fact that, in England, the government has charge of the telegraph lines, and upon the idea that a merchant or business man would lose all credit and commercial standing were he to refuse to make good to his correspondent the contract contained in his message as delivered. We cannot see how the fact of governmental charge of the telegraph system can make any difference, for in this country the sender is as impotent to control and direct the movements and conduct of the telegraph company as if it were under the government; nor can we see how the commercial standing of the sender who remits his correspondent to his recourse on the telegraph company for such injury as may result from the erroneous message, can be affected. ’ ’
So the case of Harrison v. Tel. Co., 10 Am. & Eng. Corp. Cas., 600, is a case directly in point and stronger in its facts for plaintiff'
Under the view we have taken, it becomes unnecessary to consider the stipulations in the telegram, or § 195 of the constitution. The judgment is
Affirmed.