Western Union Telegraph Co. v. Howell

38 Kan. 685 | Kan. | 1888

Opinion by

Simpson, C.:

The main features of this case are similar to those of Telegraph Co. v. Crall, j ust decided. All that is said in that case denying the power of the telegraph company to limit its liability by contract, so as to relieve itself against acts of gross negligence committed by its agents and employés, applies with equal force to the facts appearing in the record of this case. The point most vigorously contested however in this case, not arising in the other, grows out of the finding of the court that “The only evidence of negligence is such as arises from the foregoing facts, but the failure of the defendant to properly transmit the message, as to the place where the plaintiff was to be met with his team, was, under the circumstances, gross negligence of the defendant.” The other or foregoing facts found were, that “the message as delivered to the defendant’s agent at Omaha was plainly written, and the word ‘Salem’ was very plainly written; it could not have been mistaken for ‘Salina,’ nor for any other word than ‘Salem,’ by any person possessing ordinary eyesight, who would examine it with the slightest care;” and the further finding: “Said manager, [meaningat Downs,] doubting the correctness of said dispatch, requested the defendant’s agent at Downs to ascertain at Atchison and Kansas City if the message as delivered was correct, and said agent of the defendant telegraphed to the relay offices at Kansas City and Atchison on the same evening, and was informed from both of said offices that the body of the dispatch read as follows, namely: ‘Have my team and a double carriage in Salina by Thursday noon. — George W. Howell.’ ”

It is said by counsel for plaintiff in error, that the only evidence of negligence as found by the court below is the mere fact that said message was delivered reading “Salina” instead of “Salem,” and inasmuch as the message was not a repeated message, the burden was upon Howell to show negligence, other than such as might be inferred from the mere error in the transmission of the message. The cases of White v. Telegraph Co., .14 Fed. Rep. 710, and Becker v. Telegraph Co., 11 Neb. 87, are cited and relied on to establish the proposition.. The authorities on the other side are numerous, and are collected in the opinion of Judge Holt in the Crall case.

Telegram-negpingin’traSmission. Counsel are mistaken in their supposition, however, that the only evidence of negligence is the mere fact of mistake in the word “Salina” for “Salem.” There are two other facts found that demonstrate the negligence of the telegraph comPany- The first is, that the word “Salem” was very plainly written, so plainly written that eoup3 not have been mistaken for “Salina,” or any other word, by any person possessing ordinary eyesight, who would examine it with the slightest care. This is equal to a finding that the operating agent at Omaha did not exercise the slightest care in the transmission of the message. In the absence of the finding that the word “Salem” was very plainly written, it might with some propriety be urged that the words are similar in appearance when hurriedly written, and the mistake might easily occur in a press of business. But the finding disposes of all such theories. There is a mistake, but the message is very plainly written, and the mistake could not occur with the slightest care. Here is something in addition to the mere fact of mistake. Then again, the manager at Downs feared a mistake, and had the agent of the company ask both at Atchison and Kansas City for a verification of the message. This was notice to the company that a mistake was feared, but from both places came assurances that the message as delivered was correct; that Salina was meant, and not Salem. This was an additional act of gross carelessness upon the part of the company. It may be that it was not obliged to repeat the message, or to give additional assurances of its freedom from mistake, but having done so, the company was obliged to ascertain just what the original message was, and report accordingly. If it was content to rely on a report from the relay stations, and not to inquire at the office from which the message was sent, it ought to be held responsible for an omission of duty in that respect. So the case stands thus; there is the fact of mistake; the fact that the words were very plainly written; the fact that a mistake was feared and its attention called to it, and after inquiry it persisted in the mistake: and these are sufficient to support the finding of gross negligence on the part of the company.

It is recommended that the judgment be affirmed.

By the Court: It is so ordered.

All the Justices concurring.