McCormick v. Telegraph Co.

MCCORMICK V. WESTERN UNION TELEGRAPH COMPANY.

United States Circuit Court of Appeals, Eighth Circuit, March 1, 1897.

ERROR IN TELEGRAM-NO DUTY TO STRANGER.

A telegraph company, while liable to the sender under its contract for transmission, and to the addressee, for failure to exercise care that a telegram be accurately transmitted and delivered, is under no such duty to a stranger who has merely seen the telegram as delivered, and acted upon it to his injury.

Case of this series cited in opinion, appearing in bold faced type: W. U. Tel. Co. v. Wood, vol. 4, p. 868.

IN ERROR to the Circuit Court of the United States for the District of Utah. Appeal by plaintiff below.

Arthur Brown (Henry P. Henderson and William H. King with him on brief), for plaintiff in error.

Davis Evans and Eleneios Smith (George H. Fearons, L. R. Rogers and Joseph Dickson with them on brief), for defendant in error.

LOCHREN, District judge.

2. The defendant telegraph company, by its contract with the sender of the telegram, made in consideration of payment for the service, was bound to him to transmit his message correctly, and would be liable to him for any damage he might sustain as the direct result of failure to perform such contract, except in so far as such liability had been lawfully limited by the terms of the

contract.

It also owed a duty to the person to whom the telegram was addressed and to whom it was delivered by

McCormick v. Telegraph Co.

the telegraph company to be acted upon, to exercise care that the telegram so delivered should be authentic and accurate. The cases of May v. W. U. Tel. Co., 112 Mass. 90, and Elwood v. W. U. Tel. Co., 45 N. Y. 549, sustain the right of a person to whom a telegram is addressed and to whom it is delivered by the telegraph company, to recover for damages caused by negligence of the character indicated. But a telegraph company cannot be liable to a stranger to the company and to the telegram, -one to whom it has never delivered the message, and to whom it owes no duty whatever,-merely because he had seen the telegram and acted upon it to his injury. W. U. Tel. Co. v. Wood, 6 C. C. A. 432; 57 Fed. Rep. 471; Savings Bank v. Ward, 100 U. S. 195.

The direction to the jury was correct and the judgment is affirmed.

NOTE-In addition to the above nineteen cases, the following have reference to negligence of telegraph companies in the transmission or delivery of messages.

ALABAMA.-W. U. Tel. Co. v. Crawford, Supreme Court, November, 1895 (110 Ala. 460).

Telegraph companies cannot, by conditions in their blanks, exempt them. selves from liability in case of unrepeated messages.

ARKANSAS.-W. U. Tel. Co. v. Aubrey, Supreme Court, February 1, 1896 (61 Ark. 613).

Question of damages only.

GEORGIA.-W. U. Tel. Co. v. Davis, Supreme Court, Feb. 27, 1895 (95 Ga. 520).

Held, that upon the facts the company was not chargeable with negligence to which the delay in transmitting the telegram was due.

Woodburn v. W. U. Tel. Co., Supreme Court, June 10, 1895 (23 S. E. Rep. 116).

Action for penalty properly held abated by repeal of statute pending the action.

Mondon v. W. U. Tel. Co., Supreme Court, July 29, 1895 (96 Ga. 499). Question of measure of damages, and of competency of evidence bearing on same.

Meadors v. W. U. Tel. Co., Supreme Court, Oct. 5, 1895 (66 Ga. 788).

McCormick v. Telegraph Co.

Per CURIAM: Since the decision of this case in the lower court, the telegraph penalty acts having been repealed, the public interests will not be subserved by an elaboration of the reasons which influence Justice ATKINSON to this conclusion, and therefore he files no opinion. The Chief Justice, dissenting, adheres to his views as expressed in his dissenting opinion filed in Mathis case, 21 S. E. Rep. 564, 1039.

ILLINOIS.-W. U. Tel. Co. v. Lycan, Appellate Court, Nov., 1895 (60 III. App. 124).

Without some evidence of knowledge thereof, sender or addressee cannot be held bound by stipulation contained in blank.

W. U. Tel. Co. v. Beck, Appellate Court, March, 1895 (58 Ill. App. 564). Stipulation requiring notice of claim to be presented within sixty days held to be reasonable. Certain correspondence held not to constitute sufficient notice.

W. U. Tel. Co. v. Hart, Appellate Court, Oct., 1895 (62 Ill. App. 120). A person discovering that error must have been made must use reasonable and diligent effort to make the loss as small as possible.

Webbe v. W. U. Tel. Co., Appellate Court, March, 1896 (64 Ill. App. 331). Failure to observe the stipulation requiring notice of claim to be presented within sixty days held fatal to recovery. Stipulation held binding on plaintiff who had used similar blanks for sixteen years in his business and knew there were conditions printed in them, but had never read them. INDIANA.-W. W. Tel. Co. v. Cain, Appellate Court, Jan. 9, 1896 (14 Ind. App. 115).

Mental anguish alone sufficient to warrant recovery.

Iowa.—Taylor v. W. U. Tel. Co., Supreme Court, Oct. 16, 1895 (64 N. W. Rep. 660).

The South Dakota statute imposing a penalty for negligence in the transmission of telegrams has no extra territorial force.

The South Dakota statute prohibiting labor on Sunday is no defence to an action for damages for delay of a telegram relating to transportation of horses through that State on Sunday.

Brumfield v. W. U. Tel. Co., Supreme Court, April 11, 1896 (66 N. W. Rep. 898).

In an action for delay of a telegram, recovery held precluded by failure to prove time of delivery at initial or receipt at terminal office.

KANSAS.-W. U. Tel. Co. v. Woods, Supreme Court, May 9, 1896 (56 Kan. 737).

If the addressee of a telegram has both a place of business and a residence at the place where the terminal office is located, the company should deliver the message either to some one in charge at the place of business or to some member of the family at the residence.

Measure of damages for failure to deliver commercial telegram.
Duty of addressee to reduce injury.

McCormick v. Telegraph Co.

MISSISSIPPI.-W. U. Tel. Co. v. Littlejohn, Supreme Court, May 20, 1895 (72 Miss. 1025).

Question whether evidence warranted recovery for the specific losses claimed.

What is not dealing in "futures" within statutory prohibition.

Fairley v. W. U. Tel. Co., Supreme Court, Oct., 1895 (73 Miss. 6).

In actions against telegraph companies for damages due to delay of telegram, gains prevented are an element of damages.

MISSOURI.-E. P. Cowen Lumber Co. v. W. U. Tel. Co., Appellate Court, March, 1894 (58 Mo. 257).

Stipulation with respect to unrepeated messages held to be valid and reasonable.

Jarboe v. W. U. Tel. Co., Kansas City Court of Appeals, November 4, 1895 (63 Mo. App. 226).

Answer pleading unrepeated message stipulation held not demurrable. "We settled that point in the late case of Cowen Lumber Co. v. W. U. Tel. Co."

NEBRASKA.—W. U. Tel. Co. v. Wilhelm, Supreme Court, June 16, 1896 (48 Neb. 910).

Question of pleading.

NORTH CAROLINA.-Sherrill v. W. U. Tel. Co., Supreme Court, November 26, 1895 (117 N. C. 352).

Opinion on former appeal reported 5 Am. Electl. Cas. 754. Judgment for plaintiff affirmed. Held negligent for telegraph company having received over the wires a telegram announcing serious illness and requesting an immediate answer, to deliver it to another person of the same surname but different initials, and make no inquiry why no answer was returned.

Also negligent to disobey a rule of the company requiring its operators in case of doubt to wire back for better address.

Recovery permitted though sender negligent in failure to give precise address, it appearing that he left enough money for delivery.

Lewis v. W. U. Tel. Co., Supreme Court, Dec. 3, 1865 (117 N. C. 431). Recovery lost by failure to give notice within sixty days according to stipulation.

Havener v. W. U. Tel. Co., Supreme Court, Dec. 23, 1895 (117 N. C. 540). Mental distress held proper ground for recovery.

SOUTH CAROLINA.-Gist v. W. U. Tel. Co., Supreme Court, Oct., 1895 (45 S. C. 344).

No cause of action against telegraph company for damages caused by failure to deliver message relating to transactions in cotton futures.

TENNESSEE.

(95 Tenn. 271).

W.U. Tel. Co. v. Barnes, Supreme Court, Sept. 12, 1895

McCormick v. Telegraph Co.

In an action by husband and wife for failure to deliver telegrams addressed to both, testimony of the wife alone that she did not receive it will not support recovery.

W. U. Tel. Co. v. Robinson, Supreme Court, Nov. 13, 1896 (97 Tenn. 688). The existence of a rule that free delivery of telegraphic messages will not be made outside the limits of half a mile from the office will not excuse a company for failure to promptly deliver a message outside that limit, when it appears that the rule was never published, observed or enforced by the company; that neither the public nor the plaintiff knew of its existence; that the company's agent received the message and promised prompt delivery without demanding extra compensation, and that it was actually delivered, but after undue delay.

Verdict of $500 for failure to promptly deliver a telegram to a clergyman summoning him to administer baptism and spiritual consolation to the sender's dying daughter, held not so excessive as to warrant setting it aside.

TEXAS.-W. U. Tel. Co. v. Hale, Court of Civil Appeals, June 19, 1895 (11 Civ. App. 79).

Failure of telegraph company to deliver message announcing illness of a brother will warrant a recovery for mental distress of addressee, although one purpose of the message was to secure his services as a nurse.

W. U. Tel. Co. v. Guest, Court of Civil Appeals, Oct. 12, 1895 (33 S. W. Rep. 281).

$450 held not excessive damages for failure to deliver a telegram announcing death of addressee's child.

W. U. Tel. Co. v. Russell, Court of Civil Appeals, Dec. 14, 1895 (33 S. W. Rep. 708).

$1,500 and cost of transmission held not excessive damages for failure to deliver message summoning physician to attend child, which was thus deprived of medical attendance for more than a day and died.

W. U. Tel. Co. v. Smith, Court of Civil Appeals, Dec. 14, 1895 (33 S. W. Rep. 742).

Telegram in language "Father died last night. Have you any wishes in regard to the funeral," held to afford sufficient notice to the company of the importance of prompt transmission.

Mitchell v. W. U. Tel. Co., Court of Civil Appeals, Jan. 29, 1896 (33 S. W. Rep. 1016).

A person interested in the transmission of a telegram is not bound to anticipate unreasonable delay.

Stipulation exempting company from liability on unrepeated message not binding where failure to transmit correctly is due to negligence of the company.

W. U. Tel. Co. v. Morrison, Court of Civil Appeals, Feb. 5, 1896 (33 S. W. Rep. 1025).