Opinion
Opinion filed January 6, 1931.
1. — Telegraphs — Failure to Deliver — Business Transaction — Knowledge — Face of Telegram. A telegram reciting, "Get down here not later than Tuesday night O.K.," did not on its face disclose sufficient facts to show that the message related to a business transaction, notifying the telegraph company with reasonable certainty that damages were likely to follow from a failure to deliver the message.
2. — Same — Same — Damages — Interstate Commerce — Federal Decisions — Control. In an action for damages because of the failure of a telegraph company promptly and properly to deliver a telegram, the message being an interstate message, federal authority controls.
3. — Same — Same — Same — Same — Extrinsic Notice to Initial Telegraph Company — Not Binding on Connecting. Extrinsic notice of the importance of a telegram, imparted to the agent of the initial telegraph company was not binding on the connecting company, and where the telegram itself failed to impart such notice the connecting company was not liable for failure to deliver the telegram.
Appeal from the Circuit Court of the City of St. Louis — Hon. Chas. W. Rutledge, Judge.
REVERSED AND REMANDED.
Jones, Hocker, Sullivan Angert for appellant.
Francis R. Stark of counsel.
(1) The telegram involved in this case being an interstate message, the liability of the defendant and the measure of damages to be assessed against it must be determined by the law as declared by the Federal courts. Jacobs v. Western Union Telegraph Co., 196 Mo. App. l.c. 305; Poor Grain Co. v. Western Union, 196 Mo. App. l.c. 561-562; Western Union v. Milling Co., 218 U.S. 406; Western Union v. Pendleton, 122 U.S. 347; Western Union v. Speight, 254 U.S. 17; Western Union v. Beach, 211 Pac. (Okla.) l.c. 1035-1036; Western Union v. Esteve Bros., 256 U.S. 566. (2) It is the rule established by both Federal and Missouri decisions that damages recovered for failure to deliver a telegram must be such as might reasonably be expected to result from such failure to deliver, or such as might reasonably be said to have been within the contemplation of both parties when the message was accepted, if the same should not be promptly delivered. The rule in Hadley v. Baxendale, 9 Exch. 345, applies to actions for damages for non-delivery of a message, whether the action therefor be considered in contract or in tort. Primrose v. Western Union, 154 U.S. l.c. 29-30; Western Union v. Coggin, 68 Fed. (8th Cir.) l.c. 139-140; Fererro v. Western Union, 9 App. Dec. 455, 35 L.R.A. 548; Western Union v. Hall, 124 U.S. 444; Melson v. Western Union, 72 Mo. App. l.c. 114-116; Hughes v. Western Union, 79 Mo. App. l.c. 137-138; Whitehill v. Western Union 136 Fed. l.c. 501-502; Kerr S.S. Co. v. Radio Corporation, 245 N.Y. 284, 157 N.E. 140. The damages sought to be recovered in excess of the price of the message are not recoverable because they were not the proximate result of the alleged delay. 37 Cyc. 1754; Western Union v. Hall, 124 U.S. 444; Primrose v. Western Union, 154 U.S. 1; Hughes v. Western Union, 79 Mo. App. 133; Jacobs v. Western Union, 196 Mo. App. 300; 26 R.C.L., p. 602. sec. 100. (3) The telegram involved in this case does not remotely suggest that the damages sought to be recovered might reasonably result in case of a failure to promptly deliver the message. Neither can it be reasonably said that such damages were in contemplation of the parties. Said message is in the class of messages usually referred to as "come at once" or "meet me" messages, and there is no liability for damages in this case beyond the price paid for the message. Melson v. Western Union, 72 Mo. App. 111; Fitch v. Western Union, 150 Mo. App. 149; Western Union v. Coggin, 68 F. 137; Bowers v. Western Union. 47 S.E. (N.C.) 597; Western Union v. Clifton, 8 So. (Miss.) 746; Jones v. Western Union, 50 S.E. (S.C.) 198; Hildreth v. Western Union, 47 So. (Fla.) 820; Kolliner v. Western Union, 147 N.W. (Minn.) 961; Sledge v. Western Union, 50 So. (Ala.) 886; King v. Western Union, 105 Pac. (Kan.) 449: Christman v. Postal Telegraph-Cable Co., 74 S.E. (N.C.) 324; Faulkner v. Western Union, 13 S.W.2d (Mo. App.) l.c. 1090-1091. (4) The court erred in admitting evidence as to the plaintiff's damages in connection with the Arkansas contract and the proposed movement of the dredge machinery from Rolling Fork, Mississippi, to Newport, Arkansas, and in failing to give Defendant's Instruction No. III limiting the amount of plaintiff's damages to the price paid for sending the message. (Authorities, Points 2 and 3, supra.) (5) The trial court erroneously admitted the evidence as to the knowledge of Hazelwood, the agent of the Postal Telegraph-Cable Company at Rolling Fork, Mississippi, for the purpose of showing extrinsic knowledge of plaintiff's purpose in sending the telegram, and in refusing Defendant's Instruction No. I because the agent of the Postal Telegraph-Cable Company was not the agent of the Western Union Telegraph Company, and notice to said agent at Rolling Fork, Mississippi, was not notice to the defendant in this case. Baldwin v. United States Tel. Co., 45 N.Y. 744, 6 Am. Rep. 165; L. N.R. Co. v. Chatters, 279 U.S. 320; Basila v. Western Union, 24 F.2d 569; 26 R.C.L., pp. 558-559, sec. 63. Even if Hazelwood had been the agent of the defendant company, there would have been no liability for failure to communicate his knowledge to the other agents of the company in Mississippi and Arkansas. Western Union v. Hall, 287 Fed. l.c. 303-304; Faulkner v. Western Union, 13 S.W.2d (Mo. App.) 1088; Western Union v. Woniski, 84 Ark. 457, 106 S.W. 486; Western Union v. Merritt, 55 Fla. 462, 46 So. 1024; Utica Sanitary Milk Co. v. Casualty Co., 210 N.Y. 399; Wiggs v. Telegraph Co., 110 S.W. (Tex. App.) 179; Pope v. Western Union, 14 Ill. App. 531. (6) The defendant had a right to have its theory of the case submitted by instructions on the case, and the court erred in refusing Defendant's Instructions II and IV. Miller v. Kansas City Rys. Co., 247 S.W. (Mo. App.) 230; Jennings v. Cooper, 230 S.W. (Mo. App.) l.c. 328; Smith v. Southern, 210 Mo. App. l.c. 292; Maeshall v. Brown, 230 S.W. (Mo. App.) l.c. 348. The evidence shows reasonable diligence on the part of the defendant to deliver the message to the addressee, unless the testimony of Kennett Clark as to calls for the telegram be true. Moore v. Western Union, 164 Mo. App. 165; Downs v. Horton, 287 Mo. l.c. 430-431; Wilkinson v. Western Union, 206 Mo. App. l.c. 392.
Louis J. Portner for respondent.
(1) It is well-settled law under Missouri and federal decisions that the sender or sendee of a telegram in a tort action against a telegraph company for failure to deliver a message promptly, can recover for the damages that are the natural and proximate result of defendant's breach of a public duty. Lynch v. Western Union Telegraph Company, 18 S.W.2d 535-538; Faulkner v. Western Union Telegraph Company, 13 S.W.2d 1088-1090; Lutesville Sand Gravel Company v. Western Union Telegraph Company, 296 S.W. 252-254; Barnett v. Western Union Telegraph Company, 287 S.W. 1064-1068; Jacobs v. Western Union Telegraph Company, 196 Mo. App. 300-303; Tippin v. Western Union Telegraph Company, 194 Mo. App. 80-87; Western Union Telegraph Company v. Cowin Company, 20 F.2d 103-107; Western Union Telegraph Company v. Lawson, 182 F. 369. (a) This rule also prevails in the case of interstate messages. Faulkner v. Western Union Telegraph Company, supra; Barnett v. Western Union Telegraph Company, supra; Jacobs v. Western Union Telegraph Company, supra. (b) This rule is applicable to cases involving messages of the character in the case at bar. It was a message from the owner of a business to an employee, it was sent in care of the sender's business firm and contained an urgent request. Jacobs v. Western Union Telegraph Company, 196 Mo. App. 300-303; Kerns Lorton v. Western Union Telegraph Company, 174 Mo. App. 435-440. It was also sent under circumstances which charge the defendant with notice of its importance. Faulkner v. Western Union Telegraph Company, 13 S.W.2d 1088-1090; Fitch v. Western Union Telegraph Company, 150 Mo. App. 149-161. (2) The evidence concerning the receiving Postal Telegraph agent at Rolling Fork, Mississippi, for the purpose of showing extrinsic knowledge of the importance of the telegram to plaintiff was properly admitted for the following reasons: 1. There are no Federal or Missouri cases which directly decide this issue. Accordingly, the rules governing the agency of a common carrier for a connecting carrier should prevail. Jones on Telegraph Telephone (2 Ed.), 477; 26 Ruling Case Law, 558, 2. It has long been the established rule in Missouri that there is a privity between the initial carrier and a connecting railroad so as to make the initial carrier the agent of the connecting carrier for the purpose of making a contract. Halliday v. The Railroad, 74 Mo. 159; Pabst Brewing Company v. Railway, 273 S.W. 424-427. (3) Defendant's instruction II was properly refused, because it was, in effect, a peremptory instruction and direction to find for the defendant, and for the further reason that it singled out defendant's evidence and did not include the plaintiff's testimony. Spohn v. Railway, 87 Mo. 74. (4) The court properly refused defendant's instruction IV, for the reason that it amounted to a comment upon the evidence and for the further reason that the issue therein presented was properly presented to the jury under plaintiff's instruction I. Crowley v. Railway Company, 18 S.W.2d 541-543.
This is an action to recover for damages alleged to have been sustained by the plaintiff because of the failure of the defendant to promptly and properly deliver a telegram sent by the plaintiff from Rolling Fork, Mississippi, on December 12, 1925, to L.W. Salway, at Newport, Arkansas. The amount of damages claimed is $500. The message sent, omitting date and signature, is as follows: "Get down here and not later than Tuesday night O.K."
After trial in a justice court, the case was appealed to the circuit court, where a trial was had before the court and a jury. There was a verdict and judgment in favor of plaintiff for the sum of $500, and defendant has appealed.
The evidence discloses that plaintiff, George W. Clark, lived in the city of St. Louis, and is a drainage contractor, doing business under the name of George W. Clark Construction Company, in which business he had been engaged for many years. He had a contract to do certain work near Newport, Arkansas, and the machinery with which he was to do the work was at Rolling Fork, or near Rolling Fork, Mississippi. He had communicated with some parties at Rolling Fork to advise him as to the condition of the roads and the river so that he might be able to move this machinery from Rolling Fork, Mississippi, to Newport, Arkansas, at the opportune time. He received information from parties at Rolling Fork that the roads and the river were in such condition that the property could be moved. He immediately left his work at Newport, Arkansas, and proceeded to Rolling Fork, and left the business at Newport in charge of his foreman, L.W. Stalway, and his son, Kenneth Clark. On the 12th day of December, 1925, he proceeded to the office of the Postal Telegraph-Cable Company, at Rolling Fork, and there sent the message above referred to, to his foreman at Newport, Arkansas. This message was not delivered until about a week later, at which time the river and roads were in such condition that plaintiff could not move the machinery, and he was put to considerable expense and damage on account of the delay in the failure of defendant to promptly deliver the telegram.
Without going into great details as to the nature and character of the evidence as to damages, suffice it to say that plaintiff introduced ample competent evidence to show that he suffered damages to the extent of the amount he recovered. The message was sent from Rolling Fork via Jackson, Mississippi, and from Jackson the message was transferred and sent over the line of defendant.
There is evidence to the effect that plaintiff at or about the time he sent the message gave to the agent of the Postal Telegraph-Cable Company at Rolling Fork, Mississippi, sufficient oral information from which it could be reasonably inferred that the message was important and referred to a business transaction.
The evidence offered on the part of the plaintiff discloses that the object and purpose of sending the message was to have his foreman and other men come at once to Rolling Fork, Mississippi, in order that they might move the machinery, which was located at a distance of about eight miles from Rolling Fork, while the river and roads were in such condition that it could be moved.
That plaintiff suffered damages on account of the failure to deliver this message, there can be no doubt.
The real questions presented here on appeal are two: First, was the message sent such as to show on its face that it related to a business transaction and that the damages for failure to deliver were such as might reasonably be expected to result from such failure to deliver; second, was extrinsic notice to the agent of the Postal Telegraph Company notice to defendant?
After examination of the authorities upon this question, we have come to the conclusion that the telegram on its face did not disclose sufficient facts to show that the message related to a business transaction and that the defendant may with reasonable certainty know that damages were likely to follow from the failure to deliver the message.
In Melson v. Western Union Telegraph Co., 72 Mo. App. 111, plaintiff sent the following message: "If possible come to Shelbina in the morning." The court held that recovery could not be had in that case because the telegram did not disclose the nature of the business or matter contemplated thereby, and that by reason thereof recovery should be limited to the price paid for sending the message.
In Faulkner v. Western Union Telegraph Co. (Mo. App.), 13 S.W. (2) 1088, the same court held with respect to the following telegram, "Shall be glad to interview you preferably Monday," that the message was insufficient, standing by itself, to indicate the nature of the business, or that it referred to any business transaction whatever. Recovery was permitted in that case upon the ground that defendant had extrinsic knowledge of the fact that it did refer to a business transaction on account of a previous telegram that had been sent with respect to the same matter.
Plaintiff relies, among others, on the case of Jacobs v. Western Union Telegraph Co., 196 Mo. App. 300, 196 S.W. 31. In that case there was a message sent by some one in Cincinnati to Harry L. Jacobs, an attorney, in Kansas City. The telegram, omitting date and signature, was as follows: "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 deliverying 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."
This suit was not brought by the sender of the telegram, but by the sendee, and the court held that the telegram showed on its face that the sendee 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 was further stated by the court that defendant must have known that attorneys receive compensation for services rendered, and do not receive compensation if they fail to render service.
This is wholly unlike the telegram in the instant case, and we are clearly of the opinion that plaintiff cannot recover even in an action in tort, unless extrinsic notice to the agent of the Postal Telegraph Company was notice to the defendant. This is the only remaining question in the case of any particular significance. We have, after examination, arrived at the conclusion that this is not sufficient to make defendant liable. This being an interstate message, Federal authority controls, and we are bound by the rules of Federal construction.
In Basila v. Western Union Telegraph Co., 24 F. 570, it was held that the Carmack Amendment to the Interstate Commerce Act, which makes initial carriers liable for the negligence of connecting carriers, does not apply to telegraph companies.
Respondent contends that there being no decisions in Missouri directly upon this question, we are controlled by the rule of construction in Missouri, to the effect that there is a privity between the initial and the connecting carriers so as to make one the agent for the other so far as the contract of carriage is concerned. But we do not think this rule can be construed to extend to the facts of this case so as to make defendant liable. Under the Federal rule, defendant could not be held liable upon the ground that the extrinsic notice of the importance of the telegram, imparted to the agent of the Postal Telegraph Company at Rolling Fork, Mississippi, was binding on defendant in the absence of the fact that the telegram itself imparted such notice. [See also: Baldwin v. United States Telegraph Co., 45 N.Y. 744; 26 R.C.L., p. 559.]
Under the facts of this case, as disclosed by the record before us, we are of the opinion that plaintiff was not entitled to recover the amount of the actual damages he sustained, for the reasons above stated.
The judgment is accordingly reversed and the cause remanded. Haid, P.J., and Becker, J., concur.