94 P. 568 | Or. | 1908
Lead Opinion
Opinion by
Thus far practically all the authorities seem to go, and the only dispute is whether the addressee can maintain the action, when the company did not know that he was to be benefited by a performance of the contract between it and the sender. In Frazier v. Western Union Tel. Co. 45 Or. 414 (78 Pac. 330: 67 L. R. A. 319) we held that the addressee of a telegraph message could not sue the company for a negligent failure to promptly deliver it, unless the company knew or was chargeable with knowledge, at the time it accepted the message for transmission, that he was to be benefited thereby, on the theory that the right of action, whether on contract or in tort, was necessarily based upon the contract between the company and the sender. But it was not intended to hold that, before an addressee can sue, it must appear that he was the sole party to be benefited by such contract. If the company undertook the performance of a service, which it knew or had reasonable ground to believe would be a benefit to him, it is responsible to him for negligence in the performance of such duty. If this were not so it is obvious that the receiver or addressee of a message would oftén suffer great damage, through the negligence of the company, without any means of redress. Now, within these principles, it is manifest that plaintiff is entitled to maintain this action. Defendant knew at the time it undertook to execute the commission of summoning her to its office at Marshfield to answer a long-distance call, that she would be benefited by the performance of the duty it thus assumed, and, if she was damaged by its negligence, she is entitled to recover therefor. The evidence tends to show that by reason of the negligence of defendant she lost a situation or employment, which would have been a benefit to her; and
Judgment reversed, and cause remanded for further proceedings. Reversed.
Decided May 26, 1908.
Rehearing
On Petition for Rehearing.
delivered the opinion of the court.
The motion for rehearing does not raise any new or different questions from those submitted at the original argument and passed upon by the court, but it questions the correctness of the conclusions reached.'
It was urged in some of the cases we have examined that, the remedy being in tort for breach of a public duty, notice to the company of the plaintiff’s interest in the message would be unnecessary, and recovery might be had for any damage suffered. This position is taken by the editors of the Columbia Law Review, vol. 5, p. 170, in referring to the case of Frazier v. Western Union Tel. Co. 45 Or. 414 (78 Pac. 330: 67 L. R. A. 319), and applies the general rule as to liability for torts, citing Western Union Tel. Co. v. Fatman, 73 Ga. 285 (54 Am. Rep. 877), and Pollock, Torts (6 ed), 532. But the liability for a tort in such a case as this does not rest alone on the negligence of the company, but is so far dependent upon the original contract for transmission as to limit the remedy to cases in which the company had notice of the plaintiff’s interest: Frazier v. Western Union Telegraph Co., 45 Or. 414 (78 Pac. 330: 67 L. R. A. 319) ; Smith v. Western Union Tel. Co. 83 Ky. 104 (4 Am. St. Rep. 126) ; 27 Am. & Eng. Enc. Law (2d ed.), 1059, where many cases are cited; Jones, Telegraph & Telephone Co. § 480; Postal Tel. Cable Co. v. Barwise, 11 Colo. App. 328 (53 Pac. 252) ; Western Union Tel. Co. v. Wood, 57 Fed. 471 (6 C. C. A. 432: 21 L. R. A. 706) ; Western Union Tel. Co. v. Pearce, 82 Miss. 487 (34 South. 152) ; Butner v. Western Union Tel. Co. 2 Okl. 234 (37 Pac. 1087; 6 Cur. Law, 1674; Western Union Tel. Co. v. Kirkpatrick, 76 Tex. 217 (13 S. W. 70: 18 Am. St. Rep. 37) ; Western Union Tel. Co. v. Coffin, 88 Tex. 94 (30 S. W. 896) ; Hadley v. Western
“When the opinions in them (cases referred to) are carefully read and analyzed, they recognize and affirm the. rule that a company owes a duty and incurs a liability to those parties only of whose interest it has notice, and for those injuries only which it might reasonably anticipate.”
It divides the cases into four classes: (1) Those which assert a duty and liability to the undisclosed principal of the sender; (2) those which recognize a duty and liability to a person who appears on the face of the message to be its beneficiary, although neither the sender nor the addressee; (3) those which deny any duty or liability to those who do not appear from the message to have any interest in it; and (4) the decisions which deny any liability to the undisclosed principal of the addressee. He cites many cases under this classification. We think the conclusion is unavoidable that the telephone company is liable to the addressee or person called to the phone by a patron, for any negligence in the transmission and delivery of a message or call, when the company had notice from the message or otherwise at the time of the transmission that such addressee had an interest therein, and such liability is not contractual, but in tort; and that being the ground of the liability, it is' not necessary that the addressee be the primary beneficiary in the message, but it extends to the addressee if he has any interest.
Therefore the motion will be denied.
Affirmed: Rehearing Denied.