1. A contract between a telegraph company and the sender of an
unrepeated interstate message, on a form filed with and approved by
the Interstate Commerce Commission, valued the message at $50.00 in
default of any higher valuation specified by the sender and paid
for at a higher rate, and relieved the company of liability beyond
that sum for mistakes or delays in the transmission or delivery, or
for the nondelivery of the message, caused by the negligence of its
servants or otherwise.
Held valid and applicable although
the message was never transmitted, due to the inadvertence of a
receiving clerk in filing it in the wrong place, and to subsequent
mistaken assurances that it had been sent. P.
264 U. S.
284.
2.
Qaere: whether this agreed limitation of liability
would not have applied even if the failure to transmit had been
attributable to gross negligence? P.
264 U. S.
285.
3. The reasonableness of such a limitation is determined as of
the date of the contract, and not by later prospective rules of the
Interstate Commerce Commission.
Id.
4.
Semble that another printed stipulation on the
telegram limiting the company's liability for nondelivery, etc., of
any unrepeated message to the amount received for sending it was
invalid in this case.
Id.
5. A stipulation on a telegram exempting the company from
liability if claim is not presented in writing within sixty days
after filing of the message for transmission
held
inapplicable where the filing of the message by the plaintiff's
agent was unknown to the plaintiff during the sixty days, and where
the plaintiff thereafter was diligent in presenting his claim. P.
264 U. S. 286.
286 F. 478 reversed.
Page 264 U. S. 282
Certiorari to a judgment of the circuit court of appeals
affirming a judgment of the district court for the plaintiff Czizek
in an action against the Telegraph Company for damages resulting
from the failure to forward and deliver a telegram.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit against the Telegraph Company for failure to
forward and deliver to the plaintiff a message from one Jones,
found by the Court below to have been acting as agent for the
plaintiff in the matter. The district court found for the
defendant, but the judgment was reversed by the circuit court of
appeals, 272 F. 223, and, at a second trial, in deference to the
circuit court of appeals, a judgment was entered for the plaintiff,
which was affirmed, 286 F. 478. Certiorari granted. 262 U.S.
739.
The plaintiff owned fifty shares of stock in the Idaho National
Bank at Boise, Idaho. Miller, vice-president of the bank, was
buying the stock with a view to a merger. He talked with the
plaintiff and told him that he would buy his stock and that they
would have no difficulty in agreeing on the price. The plaintiff
told this to Jones, an attorney at Boise, who owned fifteen shares,
asked Jones to act for him, saying that they would sell their stock
together, and told Miller that Jones would represent him. Later,
Miller called on Jones and, at Miller's request, Jones, on November
30, 1917, wrote on a Western Union form, directing the Company to
send it "subject to the terms on
Page 264 U. S. 283
back hereof," the following telegram addressed to the plaintiff
at 5767 Shafter Avenue, Oakland, California, where the plaintiff
lived:
"Miller advises Idaho National sold to Pacific offers me ninety
dollars per share otherwise wait year and chances of liquidation
says if fails to get two thirds stock liquidation will follow. Will
you take ninety dollars per share for yours. I am inclined to
accept offer for mine. Answer."
"The form had been filed with the Interstate Commerce
Commission, and the Commission had approved the provisions and
rates that it set forth. Among the terms on the back of the form
were the following:"
"To guard against mistakes or delays, the sender . . . should
order it REPEATED, that is, telegraphed back to the originating
office for comparison,"
an additional half rate being charged.
"Unless otherwise indicated on its face, this is an unrepeated
telegram, and paid for as such, in consideration whereof it is
agreed . . ."
"1. The Company shall not be liable for mistakes or delays in
the transmission or delivery, or for nondelivery, of any unrepeated
telegram, beyond the amount received for sending the same. . .
."
"2. In any event, the Company shall not be liable for damages
for any mistakes or delays in the transmission or delivery, or for
the nondelivery, of this telegram, whether caused by the negligence
of its servants or otherwise, beyond the sum of fifty dollars, at
which amount this telegram is hereby valued unless a greater value
is stated in writing hereon at the time the telegram is offered to
the Company for transmission, and an additional sum paid or agreed
to be paid based on such value equal to one-tenth of one percent
thereof."
This telegram was an unrepeated message of the class known as
night letter, and was not specially valued or paid for upon a value
in excess of $50. It was the duty of the receiving clerk, Margaret
Brown, to endorse her initials,
Page 264 U. S. 284
the filing time and the amount of toll received, and to place
the message on the sending hook for transmission. By inadvertence,
although a competent clerk, she put it in a file of earlier
messages, instead of upon the hook, and it was not sent. The next
day, Jones' son inquired at the telegraph office for an answer,
and, being told that there was none, asked if they had sent the
telegram, and was answered yes. On December 3, he asked again, and
was told that the plaintiff had received the message. Miller was
ready and willing to buy the stock until December 5, 1917, and the
plaintiff testified that he would have sold if he had received the
telegram. Later, the stock became worthless. The district court
found that there was no gross negligence, but the circuit court of
appeals distinguished between a failure to take the first step
toward transmission and some later neglect, held that the failure
was not, and, as a matter of public policy, could not be, within
the protection of the terms that we have stated and held the
company liable for $4,500 with interest at seven percent from June
18, 1918, on which day the plaintiff made a demand.
The plaintiff, the respondent here, does not deny that he is
bound by the terms that we have recited. That was assumed below,
and is established law.
Western Union Telegraph Co. v.
Esteve, 256 U. S. 566.
Those terms apply as definitely to a nondelivery in consequence of
a neglect or oversight at the first office as at any other. The
moment that the message is received, the contract attaches, along
with the responsibility, and the transit begins. We can perceive no
legal distinction between that moment and the next when the message
is handed to a transmitting clerk, or that on which a copy is given
to a boy at the further end. The hand that holds the paper
technically is that of the Company, but no more at the beginning
than at the end, and as, in fact, it is that of servants,
reasonable self-protection is allowed to the
Page 264 U. S. 285
master against their neglects. One such self-protection
sanctioned by the decisions is a valuation of the message, with
liberty to the sender to fix a higher value on paying more for it.
Adams Express Co. v. Croninger, 226 U.
S. 491. The plaintiff finds no difficulty in valuing the
message now. It was at least equally possible to value it when it
was sent.
See Western Union Telegraph Co. v. Esteve,
256 U. S. 566,
256 U. S. 574;
Postal Telegraph-Cable Co. v. Warren-Godwin Lumber Co.,
251 U. S. 27.
When the message is valued, it may be doubted whether the
valuation can be affected by the intensity of the vituperative
epithet applied to an admitted fault.
Kirsch v. Postal
Telegraph Cable Co., 100 Kan. 250, 252. At all events,
something more would have to be shown than is proved here to take
the case out of the general rule. The act of the receiving clerk
cannot reasonably be supposed to have been more than a momentary
inadvertence. It was not a willful wrong. The answers to the
inquiries were probably the natural consequence of the first error,
and the second answer probably was too late to have had any effect
upon on the plaintiff's position.
See Primrose v. Western Union
Telegraph Co., 154 U. S. 1,
154 U. S. 15.
With regard to the amount of the valuation, if it is too low now.
Unrepeated Message Case, 61 I.C.C. 541, it was reasonable in 1917,
Primrose v. Western Union Telegraph Co., 154 U. S.
1,
154 U. S. 15;
Unrepeated Message Case, 44 I.C.C. 670. Whatever effect may be
given to the judgment of the Commission in the later case, it was
not intended to be retroactive. The rules prescribed by the
Commission were to take effect on July 13, 1921.
We have not adverted to first clause of the exemption, limiting
liability to the amount received for sending the message. Obviously
this has a narrower scope than the valuation clause, and we should
hesitate to hold that it exonerated the defendant in this case.
Unrepeated Message case, 61 I.C.C. 541.
Page 264 U. S. 286
Another clause not mentioned as yet reads:
"The Company will not be liable for damages or statutory
penalties in any case where the claim is not presented in writing
within sixty days after the telegram is filed with the Company for
transmission."
This could not be held to apply literally to a case where,
through the fault of the Company, the plaintiff did not know of the
message until the sixty days had passed. It might be held to give
the measure of a reasonable time for presenting the claim after the
fact was known, in the absence of anything more. But here, the
plaintiff called on Hackett, the General Manager at Boise, about
February 14, 1918, as soon as he knew the facts. Directly after, he
received a letter from Hackett regretting the occurrence and
enclosing the amount paid by the plaintiff as toll. Three days
later, the plaintiff returned the check by letter, saying "an
acceptance of this check on my part might be construed as a
settlement of this matter," so that the defendant then had written
notice that a claim was made. There was further communication, and
finally, on June 18, the plaintiff made a formal written demand. We
should be unwilling to decide that the action was barred by this
clause. But we are of opinion that his claim is limited to fifty
dollars for the reasons given above.
Judgment reversed.
MR. JUSTICE McKENNA dissents.