196 Mo. App. 300 | Mo. Ct. App. | 1917
Plaintiff’s action is to 'recover damages for wrongful negligence in defendant’s failure to deliver a telegram. He obtained a judgment in the circuit court for two hundred and eighty dollars.
“Cincinnati, Ohio, July 21, 1913.
To Harry L. Jacobs, Attorney,
Kansas City, Missouri.
Two suits involving Iowa interstate liquor shipments will be heard at Ottumwa next Thursday. One suit is against United States Express Company to enjoin it from delivering shipments. In the other suit consignees for personal use are defending against seizures. Counsel will have preliminary conference at Ottumwa Wednesday. I expect to attend.
Paid. Lawrence Maxwell.”
The telegram was written on one of defendant’s blanks upon which there was printed matter limiting liability. Among other limitations was one that defendant should not be “liable for mistakes or delays in the transmission or delivery, or for nondelivery for any unrepeated message, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or nondelivery of any repeated message, beyond fifty times the amount received for sending the same, unless specially valued; . . . In any event the company shall not be liable for damages for any” such mistakes or delays “whether caused by the negligence of its servants, or otherwise, beyond the sum of fifty dollars, at which amount this message is hereby valued, unless a greater value is stated in writing,” and an additional sum paid on such value.
It was shown that this telegram was not delivered to plaintiff _ until the expiration of eleven days from its date and ten'days after its receipt at Kansas City. The only excuse offered for delayed delivery was that the city directory only showed a “Harry Jacobs” and not a “Harry L. Jacobs” as addressed on the message. It was further shown that plaintiff had been employed by Dancinger Brothers wholesale liquor dealers in Kansas City to attend the trial of the two suits mentioned in the telegram. Lawrence Maxwell, the
The issues to be considered are whether the failure to deliver the telegram was the proximate cause of plaintiff’s loss; and whether the limitation clause above referred to as appearing on the back of the telegram are applicable to the facts. Other things were matters of dispute at the trial, among them, whether plaintiff had a contract with Dancinger Brothers; but there was evidence tending to show that he had, and the verdict has so determined it, and we think rightly determined it, in plaintiff’s favor.
It is insisted that the failure to deliver the telegram was not the proximate cause of plaintiff’s loss in that such loss could not reasonably have been within the contemplation of the parties. It may be true that the character of loss sustained by plaintiff was not within the contemplation of the sender and the company, but where the action is ex delicto (as here) covering a breach of public duty of which the sendee has a right to complain, any damage to him is properly allowed that flows directly and in the usual course of things from the breach of duty. In this case plaintiff’s loss of a fee was not remote, it resulted directly, and in the usual course of such things, from defendant’s wrongful act. [Kerns & Lorton v. Telegraph Co., 170 Mo. App. 642; Fitch v. Telegraph Co., 150 Mo. App. 149; Tippin v. Telegraph Co., 185 S. W. 539; Western Union Tel. Co. v. Lawson, 182 Fed. 369.] We have been cited to Hadley v. Baxendale, 9 Exch. 341 (S. C. 23 L. J. Ex. 179), as though that case estricted damages to such as were within the contemplation of the parties as probably to be the result of a breach. The case does not so restrict the rule.
But the case before us is not between the immediate parties to the contract. It is ex delicto, based upon a breach of dirty where the basis of recovery, in common with actions ex contractu, is the damage naturally and in the usual course of things, flowing from such violated duty.
It is suggested that the defendant had no notice that a loss of a fee would be suffered by plaintiff in case o'f delay in delivery. But in our opinion the face of the telegram itself discloses that such would be the natural result. The telegram was information to defendant that plaintiff was an attorney and that he was being informed of the date when two suits would be heard and that there would be a conference of attorneys interested. It mrrst have been known to defendant that attorneys receive compensation for services rendered and that they will not receive compensation if they fail to render the service. [West. Union Tel. Co. v. Short, 53 Ark. 434, 444.] The subject of informa
This brings us to that branch of the case relating to the limitation of defendant’s liability to which we have already referred. The telegram being sent from Cincinnati, Ohio, to Kansas City, Missouri, was a transaction in interstate commerce and must be governed by the Federal law as interpreted by the Federal decisions. Congress, under its interstate commerce power, has assumed control of telegraph companies operating between the States. [36 Stat. it L. 544, chap. 309; Fed. Stat. Anno. 1912, Supp. Vol. 1, p. 111.] Federal laws and Federal decisions have thereby become the sole controlling influence in the determination of all litigation in respect thereto. They have superseded all State regulation and rule of decision wherever in conflict. [Western Union Tel. Co. v. Milling Co., 218 U. S. 406; Western Union Tel. Co. v. Pendleton, 122 U. S. 347.] “A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods,” (Telegraph Co. v. Texas, 105 U. S. 460), and therefore the many announcements of the exclusive control of the decisions of the United States Supreme Court relating to interstate shipments, and interstate liability acts to servants engaged in interstate commerce, are applicable. [Western Union Tel. Co. v. Bank, 156 Pac. 1175; Western Union Tel. Co. v. Bilisoly, 116 Va. 562; Haskell Imp. & Seed Co. v. Postal Tel. Co., 114 Maine, 277.]
The Federal courts have ruled that stipulations set out on the back of telegraph blanks concerning
Furthermore, while it is unnecessary to decide- the point- and we do not do so, yet it may be suggested that, a contract limiting a telegraph company’s liability merely to the charge it has collected for trans
In stating reasons for upholding such stipulations, they have been likened to agreements between shipper and -common carrier whereby in consideration of a rate of carriage based on a certain value, in case of negligent nonperformance resulting in loss of the property, the liability is limited to that value, such as in Hart v. Pennsylvania Ry. Co., 112 U. S. 331 and Harvey v. Railroad, 74 Mo. 538. In such instance there is a sum agreed upon as the value of the shipment, and it must be paid to the shipper as his damage; but what would be thought of a provision that he could only get back the freight he had paid for thé unperformed contract?
Conceding that Congress has legislated on the question of liability of telegraph companies and thereby the rulings of the Federal courts have become controlling on State courts, it would not aid defendant, for we do not find that the oases cited are applicable [Primrose v. Western Union Tel. Co., 154 U. S. 1; Western Union Tel. Co. v. Hall, 124 U. S. 444;
The cases cited from State courts are instances where the error related to transcribing at the sending office, or transmission over the lines, or transcribing at the receiving office; instances of error in which it is readily seen that repeating would correct; though we do find at least one case where the limitation has been applied to mere unexplained or unnecessary delay. [Clement v. Western Union Telegraph Company, 137 Massachusetts 463.]
And the fact that this action is brought by the sendee of the message does not prevent the defendant company from claiming the benefit of the limit of recovery. It is true the action is not between the immediate parties to the contract. But the contract created a duty of prompt delivery by the company, for a violation of which the sendee may maintain an action sounding in tort. He gets his action through the instrumentality of the contract, and out of which his right must arise. He must therefore accept the provision of the contract which limit the undertaking of the company. [Gardner v. Western Union Tel. Co. 231 Fed. 405; Findley v. Western Union Tel. Co., 64 Fed. 459; Whitehill v. Western Union Tel. Co., 136 Fed. 499; Western Union Tel. Co. v. Bank, 156 Pac. Rep. 1178; McGehee v. Western Union Tel. Co., 53 Southern 205; Frazier v. Western Union Tel. Co., 45 Oregon, 414; Stone & Co. v. Postal Tel. Co., 31 R. I. 174.]
Plaintiff to save - himself from the application of the law 'which defendant has invoked against the judgment, claims that when Congress placed telegraph companies within the provisions of the interstate commerce act as common carriers, they became subject to the same regulations and restrictions applicable to other common carriers and that as the latter carriers are required to file with the Interstate Commerce Commission and print and keep open for inspection schedules, showing rates and charges for transportation, so telegraph companies should do likewise.
It is true that it has been held in some of the States to be necessary for the carrier to make this, showing. But late cases in the supreme court of the United States show that not to be the view of the' Federal Courts; and it is held, directly, that the presumption is to be indulged, in the absence of a showing to the contrary, that the carrier has complied with the law in filing with the Interstate Commerce Commission its schedules, rates, charges, exemptions, etc., as required by the law. [Cinn. & Tex. Pac. Ry. Co. v. Rankin, 241 U. S. 319, 326; N. Y. C. & H. R. Ry. Co. v. Beaham, 37 S. C. Rep. 43 (U. S. Sup. Ct.).]
Many of the points involved in this case are also discussed in an opinion by Judge Trimble in Poor v. Western Union Tel. Co., promulgated at the same sitting at which this is announced. The result of the foregoing considerations is that plaintiff is limited to fifty dollars as the agreed value of his message. The judgment will therefore be 'affirmed if he will remit down to that sum within ten days; otherwise it will be reversed and cause remanded. Costs of appeal against the plaintiff.