135 Mo. 661 | Mo. | 1896
This action is by a sendee or addressee of a commercial telegram against the telegraph company for negligence in its transmission whereby the plaintiff or sendee was misled into authorizing her agent to conclude a contract of sale of a tract of land for $1,300 when she believed she was obtaining $1,900 therefor.
Plaintiff’s agent, Hedges, living in Cedar Rapids, Iowa, where her real estate was situated, delivered to
“Cedar Rapids, Iowa, May 25, 1889.
“ James A. Heed, 306 Nelson Building, Kansas City, Mo.
“Offered thirteen hundred cash, lot two houses near planing mill. Must hear immediately. Can’t get more.
“George T. Hedges.”
The regular tariff rate was paid by Hedges.
This message when delivered was as follows:
“Cedar Rapids, Iowa, May 25, 1889.
11 James A. Seed, 306Nelson Building, Kansas City, Mo.
“Offered nineteen hundred cash,' lot two houses near planing mill. Must hear immediately. Can’t get more.
“George T. Hedges.”
It will be noted the offer was changed in transmission from thirteen hundred to nineteen hundred dollars.
After requesting the operator and agent of defendant at Kansas City to verify the message on account of its importance and having been informed by the operator that he had verified it and she could rely upon it, plaintiff, ignorant of the error in the message received, on the same day, sent Hedges this telegram:
“Sell property for amount offered. Will send deed by Monday, 27th.”
Armed with this power of attorney Hedges, the agent, also ignorant of the mistake in his message to plaintiff, and supposing he was authorized to sell the lot for $1,300, received a part payment of the purchaser thereon and gave a written memorandum of the sale, agreeing to make the deed and deliver possession. On the twenty-seventh of May, 1889, plaintiff and her husband joined in the execution of a deed to the purchaser reciting a consideration of $1,900 and forwarded it to
Defendant offered no evidence whatever to account for the mistake in the transmission of the message.
The company relies upon various alleged errors to reverse the judgment recovered by plaintiff.
I. It is earnestly insisted by defendant that its liability is limited by the following stipulation made by it with plaintiff’s agent when it received and undertook to transmit the message:
“All messages taken by this company are subject to the following terms: To guard against mistakes or delays the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery or for nondelivery of any unrepeated message lohether happening by negligence of its servants or otherwise, beyond the amount received for sending the same.”
It is agreed that this was an unrepeated message.
The position of defendant is that the stipulation limiting its liability for errors and mistakes in the transmission of said message is valid. It goes further
At the threshold, then, the question arises, shall this court adhere to the ruling in the Wann case? The reasoning of that case which was the first in which this court was called upon to construe the statute of 1855, sections 5 and 6, page 1521, was that the transmission of messages by electricity was so seriously affected by atmospheric causes which were uncontrollable that it would be ruinous to deny telegraph companies the right to limit their liability to any extent short of gross negligence. In other words, if that decision is to stand it simply means that in this state telegraph companies are not liable for negligence because all their messages are sent subject to this same stipulation exempting them from all liability for the negligence of their servants in transmitting messages.
Ought such a precedent to be longer followed? Is it not contrary to a sound public policy which denies to common carriers and other agencies which conduct a public, as contradistinguished from a private, business, the right to stipulate against their own negligence? We unhesitatingly answer in the affirmative. Loth as we are to overrule a decision that has stood so long, we are convinced it can not be longer maintained on principle. It was rendered when the system of telegraphic communication was yet in a crude state. The difficulties which then appeared to the courts to be so serious
It is because the reasons which induced the decision in the Wakn ease do not in our opinion any longer obtain that we are constrained to l-everse that decision. It can not be maintained that the same degree of responsibility should attach to persons or corporations engaged in transmitting intelligence by a system which was as yet crude, their operators untrained, and its appliances only experimental, and a system which, after fifty years of experience with all the adventitious aids of modern science, has been perfected in all its parts, both as to suitable instruments and the opportunity afforded to employ expert and experienced operators. While it was anticipated that this new method of communication would revolutionize old methods, no one thirty years ago could have predicted how essential and indispensable the telegraph would become to the commercial and social interests of the whole world. It occupies a unique and peculiar place and all analogies to former agencies fail when we come to apply rules of liability.
Thus at first they were called and adjudged to be common carriers, but criticisms of this title brought about a complete abandonment by the courts of that
They are corporations created for public benefit, endowed with special privileges, such as the right of eminent domain, and perform the most important functions of commerce, supplanting, in cases where celerity and rapid transmission of intelligence is necessary, the postal service of the government. Their business intimately concerns the public, andón this account the government assumes and has the right to regulate their business so as to insure impartiality of service and prevent the exaction of unreasonable tolls. Many and varied interests are dependent upon them. From their exceptional position it is in their power by a corrupt use of their knowledge and information to reap unconscionable advantages in the marts of trade, or by their negligence entail ruin and disaster upon individuals and communities. Having these exceptional advantages and enjoying a practical monopoly, every reason exists why they should be held to a rigid accountability for the negligence of their servants and employees.
Without rendering them liable as insurers or holding them for the action of the elements over which they have no control, sound judicial reasoning does demand that they should be required to perform their duties in a careful and diligent manner and that they should respond for the negligence of their servants. Why not? Such a rule entails no hardship. It is less onerous than that exacted of common carriers of goods, and no greater than is required of carriers of passengers to whose care is committed the lives and limbs of the public. Their duty springs not alone as a private
Notwithstanding our respect for the learned courts which have held they are not liable for negligence, we can not concur in that view. In the language of the supreme court of Tennessee in Marr v. Tel. Co., 85 Tenn. loc. cit. 545, we hold that this stipulation constitutes “but an artful arrangement and device by which the consequences of their own negligence is thrown upon the shoulders of their customers, and they are [thus] enabled to conduct business with no responsibility beyond that of the most trivial character for their own want of due care.”
We hold it utterly unreasonable and contrary to all the analogies of the law and sound public policy to allow such companies to thus stipulate against liability for mistakes caused by their own negligence.
Moreover we hold that the distinction between negligence and gross negligence contended for by defendant does not exist in this state. It was pointed out by the learned judge who wrote the Wann case, in the subsequent case of McPheeters v. Railroad, 45 Mo. 22, that ‘-‘there is no difference between negligence and gross negligence, the latter being nothing more than
Many of the courts of this country adopted the view pronounced in the Wann case in the earlier stages of the discussion, hut the tendency of judicial decision at present is that these companies should he held to the exercise of ordinary care, that is to %ay, they are bound to have suitable instruments and competent servants and- see that the service rendered to their patrons is performed with the care and skill requisite to their peculiar undertaking. Their reasons for so holding are entirely satisfactory to us. Ayer v. W. U. Tel. Co., 79 Maine, 493; Tyler v. W. U. Tel. Co., 60 Ill. 421; Telegraph Co. v. Griswold, 37 Ohio St. 301; W. U. Tel. Co. v. Crall, 38 Kan. 679; W. U. Tel. Co. v. Howell, 38 Kan. 685; Bigelow, Lead. Cas. Torts, 602; W. U. Tel. Co. v. Allen, 25 Am. and Eng. Corp. Cas. 535; Marr v. Telegraph Co., 85 Tenn. 529; Sweatland v. Tel. Co., 27 Iowa, 433; Harkness v. Tel. Co., 73 Iowa, 190.
In Sweatland v. Tel. Co., 27 Iowa, 433, Judge Dillon criticises the Wann case in these words: “There is a dictum in McAndrew’s Case—the first case which arose (17 Com. B. 3, 1835), to the effect that by regulations the companies may protéct themselves from liability for mistakes in unrepeated messages, except those caused by their gross negligence, and this expression has been incautiously copied and used arguendo by other courts, as for instance in Wann v. Tel. Co., 37 Mo. 472.”
The McAndrew case was an English case and based
Because we think that both reason and the weight of authority are against the decision in the Wann case, and as no rule of property is involved, that case is overruled.
II. Having reached the conclusion that the defendant was bound to exercise ordinary care in transmitting the message to plaintiffs, the next inquiry arises, was there sufficient evidence to justify the verdict? Did plaintiffs establish a prima facie case?
It was established beyond -peradventure that the message was not transmitted as it was delivered to defendant; that plaintiffs acted upon it as received by them. When this was shown a prima facie case of negligence was established and the burden of disproving the negligence was cast upon defendant, and it made no explanation whatever. W. U. Tel. Co. v. Blanchard, 68 Ga. 299; Gray, Com. by Tel., sec. 77, and authorities cited; Tyler v. Tel. Co., 60 Ill. 421; Smith v. Telegraph Co., 57 Mo. App. 259; Telegraph Co. v. Griswold, 37 Ohio St. 301-313; Bartlett v. Tel. Co., 62 Me. 209; W. U. Tel. Co. v. Carew, 15 Mich. 525.
III. There was no error in admifting in evidence section 1329' of the statutes of Iowa, which provides that “the proprietor of a telegraph is liable for all mistakes in transmitting messages made by any person in his employment and for all damages resulting from a failure to perform any of the duties required by law,”
The contract was made in Iowa, and according to its terms it was to be partially performed in that state. Indeed it is quite evident that its breach occurred in that state. Does the circumstance that it was to be partially performed in Missouri exempt it from the laws of Iowa! We think most clearly not. Like a contract of affreightment its validity and interpretation ordinarily is to be governed by the law of the state in which it was made. The statute of Iowa in no sense attempts to regulate interstate communication by telegram. Both parties to this agreement .for the transmission of the message resided in Iowa. The tariff was paid and defendant' entered upon the performance of the contract in that state. The statute and laws of Iowa were therefore pertinent and admissible and determined the effect of said contract. McDaniel v. Railroad, 24 Iowa, 416; Liverpool, etc., Steam Co. v. Ins. Co., 129 U. S. 457.
IV. But it is urged that even if defendant is liable for negligence under the circumstances, still the loss of the difference between the price received and the actual market value of the lot is not the proximate result of that negligence, in other words is not the natural and reasonable consequence of defendant’s mistake, and the principle is invoked that no one can recover damages which he can avoid by diligent effort upon his own part.
Let us examine this view of the case. This message was not in cipher. The defendant was fully ad
The cases cited by learned counsel do not meet this case. Here the damages are the direct result of defendant’s negligence. Moreover they had fully accrued when plaintiff discovered the mistake. There was no means of avoiding them except to sue the blameless purchaser or the negligent company. She chose the latter course and we think properly.
Plaintiff’s agent received her instructions by means of defendant’s wire and acted in good faith and it would seem he ought not be mulcted in damages for so doing.
In this case the question does not arise as to whether plaintiff was bound by the acts of the telegraph company as her agent. She was bound by the act of her own agent who entered into a binding contract in her name with the vendee. We think the proper measure of damages under the circumstances was the difference between the actual market value of the lot and the price received by the mistake occasioned by defendant’s negligence.
Y. As to interest, as it was conceded on the trial that interest was recoverable and defendant’s counsel named the amount at $100, it is clearly no ground for reversing the case. While the jury might or might not give it, when both parties act upon the presumption that'if a recovery is justifiable interest should follow, it presents no grdund of substantial error. The judgment is affirmed.