McLeod v. Pacific Telephone Co.

Opinion by Mr. Chief Justice Bean. 1. The contention of defendant is that plaintiff cannot recover in this action, because she was not the party [25] to be benefited by the contract which it made with Benson. The right of an addressee or receiver of a message to sue a telegraph or telephone company for a failure to transmit or deliver the message,' has been the subject of much discussion in the courts of this country. In England the question is simple. It is there held that the obligations of the company arise entirely from the contract between it and the sender of the message, and that the addressee, not being a party or privy to such contract, cannot sue thereon; but this rule does not prevail in this country, and here the courts have, with practical unanimity, sustained the right of the addressee to sue and recover such damages as he may have suffered by reason of the negligence of the company in not delivering the message: Frazier v. Western Union Tel. Co. 45 Or. 414 (78 Pac. 330: 67 L. R. A. 319) ; Telegraph & Telephone Co. v. Taylor, 26 Tex. Civ. App. 79 (63 S. W. 1076); Young v. Telegraph Co. 107 N. C. 370 (11 S. E. 1044: 9 L. R. A. 669: 22 Am. St. Rep. 883) ; Herron v. Western Union Tel. Co. 90 Iowa, 129 (57 N. W. 696) ; Mentzer v. Telegraph Co. 93 Iowa, 752 (62 N. W. 1: 28 L. R. A. 72; 57 Am. St. Rep. 294) ; Fererro v. Western Union Tel. Co. 9 App. D. C. 455 (35 L. R. A. 548) ; Butler v. Western Union Tel. Co. 62 S. C. 222 (40 S. E. 162: 89 Am. St. Rep. 893) ; Jones, Telegraph & Telephone, § 475; Thompson, Electricity, § 427. 2. While this may be regarded as the settled rule, the courts have not agreed upon a common reason for it. Some of them hold that the sender of a message is the agent of the addressee, and the latter, as principal, can maintain an action for breach, or for tort, if he is injured by negligence in the performance of the contracted duty. Others maintain that, where the contract discloses that it is for the benefit of the addressee, he may sue for a breach, under the rule that a third person has a right of action upon a promise made for his benefit, although a [26] stranger both to the promise and the consideration. Others are of the opinion that the company is a bailee, and the message is the property of the party to whom it is addressed in analogy to the consignee of goods. Others, and perhaps the majority, seem to rest the doctrine upon the public duty which the company owes to any person beneficially interested in the message or service which it undertakes to transmit or perform, whether the sender or the receiver or both. But, whatever the true reason for the rule may be, it is established that when an addressee will be benefited by the contract between the sender and the company, and with knowledge of that fact the company attempts the performance of the service, it is bound to exercise reasonable and proper care to discharge the duty thus assumed, and will be liable to the addressee for such damages as he may suffer by reason of the negligent nonperformance thereof. And we do not understand it to be essential that the contract between the sender and the company shall. be for the sole and exclusive benefit of the addressee. If the company knows, or is chargeable with knowledge of the fact, that the message which it assumes to transmit or the service which it agrees to perform will be of a substantial benefit to the addressee or receiver, it is bound to exercise due and reasonable care to transmit and deliver such message or perform such service, and for a failure in this respect it is liable to the party injured. As reasoned by the Supreme Court of Texas, the question as to who may maintain the action, does not depend upon the making of the contract for the service or payment of the fee therefor, but who, in fact, is to be served and who is damaged. If the receiver was to be benefited by the contract, and he accepted the act, there is no reason why the company should be excused from the consequence of the negligent discharge of its duty, because there was no contractual relation between it and the [27] person damaged by its negligence: Western Union Tel. Co. v. Adams, 75 Tex. 531 (12 S. W. 857: 6 L. R. A. 844: 16 Am. St. Rep. 920). Thus far practically all the authorities seem to go, and the only dispute is whether the addressee can maintain the action, when the company did not know that he was to be benefited by a performance of the contract between it and the sender. In Frazier v. Western Union Tel. Co. 45 Or. 414 (78 Pac. 330: 67 L. R. A. 319) we held that the addressee of a telegraph message could not sue the company for a negligent failure to promptly deliver it, unless the company knew or was chargeable with knowledge, at the time it accepted the message for transmission, that he was to be benefited thereby, on the theory that the right of action, whether on contract or in tort, was necessarily based upon the contract between the company and the sender. But it was not intended to hold that, before an addressee can sue, it must appear that he was the sole party to be benefited by such contract. If the company undertook the performance of a service, which it knew or had reasonable ground to believe would be a benefit to him, it is responsible to him for negligence in the performance of such duty. If this were not so it is obvious that the receiver or addressee of a message would oftén suffer great damage, through the negligence of the company, without any means of redress. Now, within these principles, it is manifest that plaintiff is entitled to maintain this action. Defendant knew at the time it undertook to execute the commission of summoning her to its office at Marshfield to answer a long-distance call, that she would be benefited by the performance of the duty it thus assumed, and, if she was damaged by its negligence, she is entitled to recover therefor. The evidence tends to show that by reason of the negligence of defendant she lost a situation or employment, which would have been a benefit to her; and [28] this is sufficient to give her a right of action against the company: 27 Am. & Eng. Enc. (2 ed.) 1070; Jones, Telegraph & Telephone, § 558. [95 Pac. 1009.] 3. There is much discussion in the brief of defendant as to the proper measure of damages, but that is a question which cannot safely be determined on a motion for nonsuit. Judgment reversed, and cause remanded for further proceedings. Reversed. Decided May 26, 1908.