118 Misc. 115 | N.Y. Sup. Ct. | 1922
December 27, 1920, the plaintiff’s niece telephoned to the office of the defendant at Providence, R. I., a message to be transmitted by the defendant to the plaintiff at 28 Milnor street, Buffalo, N. Y., as follows:
“ Mother to undergo dangerous operation. Come if possible. Wire answer. Rose,” which message was duly delivered to the plaintiff. Later on the 27th day of December, 1920, the plaintiff’s niece telephoned to the same office of the defendant a message to be transmitted to the plaintiff, at the same address, as follows:
On the 28th day of December, 1920, the plaintiff’s niece telephoned to the defendant’s same office, for transmission to plaintiff at the same address, as follows:
“ Don’t leave until you hear from me. Have hopes of saving mother without operation. Rose,” which message was delivered to the plaintiff on the same day. Had these messages been delivered in their proper order plaintiff would have been advised that there was no necessity of his going to Providence. By reason of the fact that the second message of the twenty-seventh of December was not delivered until the twenty-ninth, the plaintiff was advised of the necessity of going to Providence, and he made the journey at an expense of $100.
If the common-law liability of the defendant may be invoked by the plaintiff, he is entitled to recover his damages, consisting of the expense of the trip. Pearsall v. Western U. T. Co., 124 N. Y. 256.
In many cases against this defendant the liability for damages occasioned by the defendant’s negligence in the delay of delivering or error in transmitting a message has been held to be determined by the contract governing the transaction. In those cases the provisions of the contract, the terms printed upon the telegraph blank upon which the message was written had to be brought home to the sender in order to be legally binding upon him. Primrose v. Western Union Tel. Co., 154 U. S. 1; Pearsall v. Western U. T. Co., supra; Breese v. U. S. Tel. Co., 48 N. Y. 132; Kiley v. Western U. Tel. Co., 109 id. 231; Halstead v. Postal Telegraph-Cable Co., 193 id. 293; Weld v. Postel Telegraph-Cable Co., 199 id. 88.
By act of congress June 18, 1910 (36 U. S. Stat. at Large, chap. 309, § 7; U. S. Comp. Stat. § 8563), telegraph companies engaged in interstate commerce were brought within the Act to Regulate Commerce. The messages from Providence, R. I., to plaintiff at Buffalo, N. Y., are governed by the provisions of that act. They were not written upon any blank of the defendant and were not the subject of any special contract between the sender and the defendant. In the act of congress of June 18,1910, it is provided that telegraph messages might be “ classified into * * * repeated, unrepeated * * * and such other classes as are just and reasonable; and different rates may be charged for the different classes of messages.” It is stated in the agreed statement of facts that the messages to the plaintiff were unrepeated messages; that the rate
The plaintiff contends that the message in question having been telephoned to the defendant’s office in Providence, R. I., for transmission to plaintiff at Buffalo, N. Y., the plaintiff became entitled to the exercise by the defendant of reasonable care in the transmission and delivery of such message, and to his damages for failure to exercise such care as measured by the common law, that is, his financial loss attributable to such careless act; that there was no contract or agreement made between defendant and the sender governing the transmission and delivery of - the message other than the implied one that the defendant would use reasonable care in such service; that the schedules of rates embodying the limited liability of defendant for damages occasioned in the handling of an unrepeated message have no application to the message in question for the reason that the sender had no notice thereof; that the defendant having accepted such message over a telephone and undertaken its transmission and delivery without any notice to the sender or the plaintiff of any condition limiting its liability, plaintiff’s damages are to be solely measured by the common law.
In Western Union Tel. Co. v. Esteve Bros. & Co., 41 Sup. Ct. Rep. 584, decided June 1, 1921, the plaintiff in sending the message did not use a blank containing the provisions so limiting liability; they did not in fact assent to the limitation of liability; they did not have actual knowledge of the filing of the tariffs with the interstate commerce commission. The plaintiff contended that they were entitled to a verdict for the full amount of their loss. The defendant contended that since the message had not been repeated, the verdict should be limited to the amount received by
It thus appears that the Supreme Court has decided that upon all interstate business the liability of the defendant for errors in transmissions or delays in delivering- an unrepeated message is limited to the damages specified in the schedule of tariffs filed with the interstate commerce commission, that a contract cannot be made increasing that liability; that the failure to make a contract cannot create a liability to be measured by the common law.
Congress having occupied the field of regulation with respect to interstate telegrams, and the Supreme Court having decided that the act of congress fixes the liability of the defendant as above set forth, the statutes and decisions of the states are deemed to be superseded, and can be of no assistance in the attempt to establish
Judgment accordingly.