Collata v. Western Union Telegraph Co.

Stevens, J., delivered the opinion of the court. Appellant, as plaintiff in the circuit court, sued to recover damages alleged to have heen sustained by reason of the failure of the Western Union Telegraph Company to transmit and deliver a telegram addressed to him at Indianola, Miss. Appellant was engaged in the business of handling fruits, including bananas, in carload lots. In May, 1918, plaintiff ordered from one S. Zemurray, of New Orleans, La., two cars of bananas, one car to be shipped to Yazoo City, the other to West Point. The shipper undertook to wire appellant by way of the Western Union Telegraph Company and claims to have written out' and delivered to the company the following telegram: “May 18, 5:35 p. m. D. Collotta, Indianola, Miss. Shocking Yazoo City IOFBB West Point LUOIF both inflame. [Signed] S. Zemurray. Paid rush rush rush.” This telegram was never delivered, and as a result of the failure to receive the telegram appellant claims that the bananas rotted, and that he was damaged in the sum of seven hundred fifty-six dollars, fifty-nine cents. The defendant in the court below filed the general issue and four special pleas. The first and second special pleas undertook to raise a federal question by reason of the fact that the message was an interstate message. The third and fourth special pleas set forth and pleaded the benefit of the following stipulation appearing on the telegraph blank as a part of the contract between Zemurray, the sender, and the telegraph company: “No responsibility attaches to this company concerning telegrams until same are accepted at one of its transmitting offices, and if the telegram is sent to such office by one of the company’s messengers, he acts for that purpose as agent of the sender. ’ ’ [54] And the pleas expressly averred that the message In question was given by the sender to a messenger, and was never delivered to the company at its transmitting office, and that the company never in fact received, and therefore never undertook to transmit, the message. A demurrer was interposed to the third and fourth special pleas challenging their sufficiency in law. The demurrer submits that the stipulation relied upon by the telegraph company is against public policy and void; that the pleas admit the delivery of the message to a messenger, and a delivery to a messenger should be construed to be a delivery to the company for the reason that the company cannot plead its own negligence. A demurrer was also interposed to special pleas 1 and 2. For the purpose of this opinion it is unnecessary to set forth the first and second special pleas or to notice the disposition which the trial court made of these pleas and the demurrer thereto. The demurrer to the third and fourth special pleas was overruled, and, the plaintiff declining to plead further, judgment was entered in favor of the defendant. The present appeal challenges the ruling of the trial court in sustaining the demurrer to the third and fourth pleas and in entering final judgment therupon. The only question for decision is whether the quoted, printed provision on the telegraph blank to the effect that the company’s messenger in receiving the telegram for transmission acts for that purpose as agent for the sender is a reasonable and therefore a lawful stipulation. The authorities, we think, are in accord in upholding the validity of this stipulation. Gray’s Communication by Telegraph, par. 13, p. 23; Jones on Telegraph and Telephone Companies, pars. 278 and 409; Am. & Eng. Ency. of Law (2d Ed.), vol. 27, p. 1051; Ayres v. Western Union Tel. Co., 65 App. Div. 149, 72 N. Y. Supp. 634; Stamey v. Western Union Tel. Co., 92 Ga. 613, 18 S. E. 1008, 44 Am. St. Rep. 95. [55] The special pleas set forth in detail that the telegram was given to a messenger and was never received at the transmitting office of the company and never accepted. If the provision relied upon by the telegraph company is a reasonable and lawful provision, it follows that the sendee cannot base an action in tort for a failure to deliver the message. The reasons why the stipulation under review should be regarded as a reasonable regulation are well stated by Judge Lumpkin, speaking for the Georgia court, in Stamey v. Western Union Tel. Co., supra. The opinion, among other things, says: “The work performed by the messenger in carrying the message from the office or residence of the sender to the transmitting office of the company forms no part of the transmission of the message by the company, for which latter purpose alone the company makes a charge. There is nothing onerous or one-sided about the rule. It dictates no terms to the sender, and gives no advantage to the company. It is neither obligatory nor arbitrary. In a word, it gives the sender the alternative of delivering his dispatch to the messenger, to be delivered by him at the office of the company on the condition prescribed, or- of making such delivery either in person or by his own servant. We have been unable to find a direct adjudication upon this rule by any court, and we think this shows, or tends to show, the consensus of public and professional opinion in favor of its reasonableness. The rule is held to be reasonable in the work of Gray on Communication by Telegraph, section 13, top of page 23. Assuming, then, the reasonableness of the rule, it follows, in the absence of other facts to the contrary, that the message was not delivered to the company, because it was not presented at one of its transmitting offices, by the agent of the senders, and was not accepted by the company. . . . Messengers of a telegraph company are not sent out from the company’s, office to solicit telegrams, and, being engaged in [56] a most subordinate work of the company’s service, it is to be presumed that they are not invested by the company with the powers of receiving the company’s charges or fees for transmission of telegrams, and that they have.no powers of rejecting telegrams offered to them, either for the nonpayment in advance of the company’s charges for transmission, or for being illegibly written, or for containing matter which would make the company liable in tort or otherwise for transmitting an indecent or immoral telegram — all of which are powers preserved by law to the company for its protection, and with which it is known to the public, or should be, the receiving agent of the company at its transmitting offices is invested.” 92 Ga. 615, 616, 617, 18 S. E. 1009, 1010, 44 Amer. St. Rep. 96, 97, 98. Mr. Jones observes:. “It is well known that the messengers are usually young and inexperienced boys, and of course are not familiar with the rules in regard to the proper messages to be accepted for transmission.” And further that, if a delivery to a messenger boy should be considered a delivery to the company “the Latter would be liable for failure to send a message delivered to its messenger, although to do s.o would subject the company to an indictment or to an actionable wrong.” Paragraph 278. Mr. Gray adds a further and persuasive reason that: “Knowledge of the condition of the company’s lines, and generally of the company’s ability to communicate a message, is peculiarly within the scope of an operator’s business; and it is his right and duty, on one hand, to disclose the fact if the company is unable to achieve what it undertakes to do, and, on the other, to be informed of any facts which may aid him in correctly performing the contract.” There is no fact or circumstance in this case to estop the company or to take the case out of the general rule under discussion. The point arises in this case upon [57] the sufficiency of the defendant’s special pleas, and' the learned circuit judge was correct in overruling the demurrer. The plaintiff declined to plead further, and so the final judgment appealed from must he affirmed. Affirmed.