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its own lines it cannot perform its sender of the facts in order that he contract, the law imposes the duty to may have an opportunity to accomplish notify the sender. . This duty, his purpose in some other available however, is not absolute, but arises manner, and the company is liable in only when ordinary prudence in the damages for any failure to give such protection of the interests of the party notice. concerned requires it."

United States.-Fleischner y. Pacific A failure to notify the sender of the Postal Teleg. Cable Co. (1893) 55 Fed. nondelivery of a message will not 738, affirmed in (1895) 14 C. C. A. 166, warrant the recovery of damages 29 U. S. App. 227, 66 Fed. 899; Swan which are merely speculative, and not v. Western U. Teleg. Co. (1904) 67 proximately related to such failure. L.R.A. 153, 63 C. C. A. 550, 129 Fed. Cahn v. Western U. Teleg. Co. (1891) 318, certiorari denied in (1904) 195 1 C. C. A. 107, 2 U. S. App. 24, 48 Fed. U. S. 628, 49 L. ed. 349, 25 Sup. Ct. 810; Kagy v. Western U. Teleg. Co. Rep. 787; Postal Teleg. Cable Co. v. (1906) 37 Ind. App. 73, 117 Am. St. Nichols (1908) 16 L.R.A. (N.S.) 870, Rep. 278, 76 N. E. 792; Cumberland 89 C. C. A. 585, 159 Fed. 643, 14 Ann. Teleph. & Teleg. Co. v. Atherton (1905) Cas. 371; Box v. Postal Teleg. Cable 122 Ky. 154, 91 S. W. 257; Barnes v. Co. (1908) 28 L.R.A.(N.S.) 566, 91 Western U. Teleg. Co. (1897) 24 Nev. C. C. A. 172, 165 Fed. 138. Compare 125, 77 Am. St. Rep. 791, 50 Pac. 438, Given v. Western U. Teleg. Co. (1885) 3 Am. Neg. Rep. 427; Poteet 24 Fed. 119. Western U. Teleg. Co. (1906) 74 S. C. Alabama.-Western U. Teleg. Co. v. 491, 55 S. E. 113; Stevenson Hill (1909) 163 Ala. 18, 23 L.R.A. Montreal Teleg. Co. (1859) 16 U. C. (N.S.) 648, 50 So. 248, 19 Ann. Cas. Q. B. 530.

1058, 21 Am. Neg. Rep. 1; Western U. Thus, where there was nothing in a Teleg. Co. v. Cleveland (1910) 169 Ala. message to apprise the telegraph 131, 53 So, 80, Ann. Cas. 1912B, 534; company

that it summoned the Western U. Teleg. Co. v. Hicks (1916) sender's father, a skilled nurse, to 197 Ala. 81, 72 So. 356; Western U. attend the former in a serious illness, Teleg. Co. v. Sledge (1913) 7 Ala. App. and there were no special circum 650, 62 So. 390; Western U. Teleg. Co. stances to apprise it of such fact, it v. Holland (1914) 11 Ala. App. 510, was held that the failure of the com 66 So. 926. Compare Western U. pany to notify the sender of the neces Teleg. Co. v. Perry (1911) 3 Ala. App. sity of an additional charge for its de 247, 56 So. 824. livery beyond the free delivery limits Arkansas.-Western U. Teleg. Co. y. would not entitle him to damages for Harris (1909) 91 Ark. 602, 24 L.R.A. a special physical injury occasioned (N.S.) 1283, 121 S. W. 1051; Western by anxiety and mental anguish in U. Teleg. Co. v. Bickerstaff (1911) 100 consequence of the nonarrival of the Ark. 1, 138 S. W. 997, Ann. Cas. 1913B, sendee. Kagy v. Western U. Teleg. Co. 242; Western U. Teleg. Co. v. Cowardin (1906) 37 Ind. App. 73, 117 Am. St. (1914) 113 Ark. 160, 168 S. W. 1133. Rep. 278, 76 N. E. 792, wherein the Georgia. - Compare

Compare Western U. court said: “The damages recoverable Teleg. Co. v. Georgia Cotton Co. (1894) must result from the default of the 94 Ga. 444, 21 S. E. 835. defendant as the proximate cause Indiana.-Western U. Teleg. Co. v. thereof. They may not be remote, con Bierhaus (1895) 12 Ind. App. 17, 39 jectural, or speculative."

N. E. 881, former appeal in (1893) 8 II. Delay in transmission.

Ind. App. 246, 36 N. E. 161. See also Where it is known to an agent of a

Western U. Teleg. Co. v. Harding telegraph company, or ought to be

(1885) 103 Ind. 505, 3 N. E. 172. known to him, that because of defects

Kentucky.-A. Engelhard & Sons Co. existing along its line of communica v. Western U. Teleg. Co. (1917) 176 tion, or for any other cause, there will Ky. 806, 197 S. W. 435. be delay in transmitting a message, it Michigan. - Compare Jacob is the duty of the agent to inform the Western U. Teleg. Co. (1904) 135

V.

v.

Mich. 600, 98 N. W. 402, following Western U. Teleg. Co. v. Neel (1894)
Birkett v. Western U. Teleg. Co. (1894) 86 Tex. 368, 40 Am. St. Rep. 847, 25
103 Mich. 361, 33 L.R.A. 404, 50 Am. S. W. 15.
St. Rep. 374, 61 N. W. 645.

Canada. Compare Stevenson v.
Missouri.—Davis v. Western U. Montreal Teleg. Co. (1859) 16 U. C.
Teleg. Co. (1918) 198 Mo. App. 692, Q. B. 530.
202 S. W. 292. See also Taylor V. Thus, in Postal Teleg. Cable Co. v.
Western U. Teleg. Co. (1914) 181 Mo. Nichols (1908) 16 L.R.A.(N.S.) 870,
App. 288, 168 S. W. 895. Compare 89 C. C. A. 585, 159 Fed. 643, 14 Ann.
Smith v. Western U. Teleg Co. (1894) Cas. 369, it appeared that the send-
57 Mo. App. 259.

ers distinctly informed the telegraph North Carolina.-Laudie v. Western company of the importance of the U. Teleg. Co. (1900) 126 N. C. 431, message, and were assured that it 78 Am. St. Rep. 668, 35 S. E. 810; Cars would be promptly transmitted and well v. Western U. Teleg. Co. (1910) delivered. Shortly after sending the 154 N. C. 112, 32 L.R.A. (N.S.) 611, 69 message the telegraph company S. E. 782; Hoaglin v. Western U. Teleg. learned that, due to a break in the Co. (1913) 161 N. C. 390, 77 S. E. 417; line, the transmission of the message Ellison Western U. Teleg. Co. would be interrupted. The court, in (1913) 163 N. C. 5, 79 S. E. 277; holding the company liable for the Harrison v. Western U. Teleg. Co. damages sustained by the delay in the (1913) 163 N. C. 18, 79 S. E. 281. transmission of the message said: See also Cates v. Western U. Teleg. “With that knowledge on its part, Co. (1909) 151 N. C. 497, 24 L.R.A. and knowing the importance of the (N.S.) 1286, 66 S. E. 592.

message and that it was essential that South Carolina.—Mackorell Bros. v. it be delivered before noon of the next Western U. Teleg.Co. (1912) 90 S. C. day in order to be of any avail to the 498, 73 S. E. 359, rehearing denied in senders, we have no hesitation in hold(1912) 90 S. C. 502, 73 S. E. 875; ing it to have been gross neglect on Galloway v. Western U. Teleg. Co. its part, against which it could not (1915) 101 S. C. 159, 85 S. E. 309. contract, not to notify the senders of

Texas.-Western U. Teleg. Co. v. the break in the line, and the conseBruner (1892) Tex. 19 S. W. quent interruption in the transmission 149; Western U. Teleg. Co. v. Har of the message, that they might have grove (1896) 14 Tex. Civ. App. 79, 36 protected themselves by communicatS. W. 1077; Western U. Teleg. Co. v. ing directly with the War Department Sorsby (1902) 29 Tex. Civ. App. 345, at Washington." 69 S. W. 122; Western U. Teleg. Co. v. So, in the case of A. Engelhard & Birge-Forbes Co. (1902) 29 Tex. Civ. Sons Co. v. Western U. Teleg. Co. App. 526, 69 S. W. 181; Faubion v. (1917) 176 Ky. 806, 197 S. W. 435, Western U. Teleg. Co. (1904) 36 Tex. under similar facts, the court said: Civ. App. 98, 81 S. W. 56; Western U. "If a telegraph company's line is out Teleg. Co. v. Olivarri (1910) Tex. of order or not working, and, knowing Civ. App. - 126 S. W. 688; Western this fact, it accepts a message for U. Teleg. Co. v. Taylor (1914) – Tex. transmission over its line without Civ. App., 167 S. W. 289. See also notifying the sender of the condition Western U. Teleg. Co. v. May (1894) of the line, it assumes responsibility 8 Tex. Civ. App. 176, 27 S. W. 760; for loss occasioned by the delay. If Western U. Teleg. Co. v. McDonald the wires are out of order or not work(1906) 42 Tex. Civ. App. 229, 95 S. W. ing, and for this reason it cannot send 691; Buchanan v. Western U. Teleg. with its usual promptness a message, Co. (1907) Tex. Civ. App. 100 it must, if it desires to be excused for S. W. 974; Western U. Teleg. Co. v. its failure to promptly transmit it, Erwin (1912) Tex. Civ. App. notify the sender; and if it fails to 147 S. W. 607. Compare Western U. notify im, or informs him that his Teleg. Co. v. McMillan (1895)

Тех. message will be promptly sent, it will Civ. App. 30 S. W. 298, following be responsible for its failure to do so,

although such failure may be due to ruptions as exist at the time of the causes beyond its control.”

receipt of the message, and of which Likewise, in Western U. Teleg. Co. the sender is not informed. Western v. Bickerstaff (1911) 100 Ark. 1, 138 U. Teleg. Co. v. Birge-Forbes Co. S. W. 997, Ann. Cas. 1913B, 242, it was (Tex.) supra. said: “A telegraph company cannot Under a Missouri statute, it is the rely upon the defense that it could not duty of the servants of a telegraph transmit a message on account of company, if the telegraph lines are trouble with its wires, even though out of order so that a message cannot caused through no fault of its own, if be transmitted, to inform persons the existence of the trouble was known desiring to transmit messages of that to it when it accepted the message, fact, and a penalty is provided for a and it' failed to inform the sender of failure to do so. In an action under its inability to transmit it promptly on the statute for failure to transmit a that account."

message promptly, it has been held The foregoing rule has been said to that it was no defense that the wires be particularly applicable where the were down as the result of a storm, agent is put on notice of the impor since the statute required the teletance of the message, by its wording. graph company to inform the plaintiff Western U. Teleg. Co. v. Holland of that fact when he delivered the (1914) 11 Ala. App. 510, 66 So. 926; message to be transmitted. Davis v. Western U. Teleg. Co. v. Hicks (1916) Western U. Teleg. Co. (1918) 198 Mo. 197 Ala. 81, 72 So. 356.

App. 692, 202 S. W. 292. But in a case So, notices posted in the company's under an earlier statute it was held office that its line is down, that it is that where the agent does not and behind in its business, and that all cannot know that the line is not in messages will be delayed in trans working order, the statutory duty to mission, are not sufficient to charge inform the applicant of the company's the sender with knowledge of these inability to send the message is not facts. Western U. Teleg. Co. v. Birge- imposed. Smith v. Western U. Teleg. Forbes Co. (1902) 29 Tex. Civ. App. Co. (1894) 57 Mo. App. 259. 526, 69 S. W. 181.

But in Jacob v. Western U. Teleg. And where a connecting line, over Co. (1904) 135 Mich. 600, 98 N. W. 402, which a message must be sent, notifies wherein it appeared that a message the transmitting office of its inability was sent via a relay office, and was to send the message because of trouble there delayed because the wires were on its lines, it is the clear duty of the down, the transmitting operator havtransmitting office, as agent of the ing no knowledge of such delay or its sender, to advise its principal of that cause, it was held that the operator, fact. Western U. Teleg. Co. v. Sorsby in the absence of instructions to re(1902) 29 Tex. Civ. App. 345, 69 S. W. peat, was not required to notify the 122.

sender that the message was delayed. So, in Hoaglin v. Western U. Teleg. So, in Stevenson v. Montreal Teleg. Co. (1913) 161 N. C. 390, 77 S. E. 417, Co. (1859) 16 U. C. Q. B. 530, Burns, it was held that where, because of the J., said that the defendant was not wires being down, a message could not obliged to inform the sender that the be forwarded at once, it was the duty line was

out of order when the of the relaying operator to send a ser message was received, suggesting that vice message to the sending operator, it was more reasonable to place on so that he could notify the sender of persons desiring to have messages the delay.

transmitted the burden of inquiring A contract exempting the company whether a message could be sent from liability for damages resulting promptly. from its failure to transmit a message, Where a telegraph agent accepts a if such failure is occasioned by un message for transmission to an office avoidable interruption in the working which he knows, or ought to know, of its lines, does not cover such inter will be closed before the telegram

17 A.L.R.-8.

- 19

arrives, and fails to notify the sender peared on its face. The sender had of this fact with the consequent delay the right to assume that, as the in delivery, the company may be held message was received by the company responsible. Western U. Teleg. Co. v. for immediate transmission, if there Hill (1909) 163 Ala. 18, 23 L.R.A. existed any reasons why it could not (N.S.) 648, 50 So. 248, 19 Ann. Cas. be promptly delivered, information 1058, 21 Am. Neg. Rep. 1; Western thereof would be then given so that U. Teleg. Co. v. Cleveland (1910) other means could be adopted. The 169 Ala. 131, 53 So. 80, Ann. Cas. agent of the company had no right to 1912B, 534; Western U. Teleg. Co. assume that the sender of so urgent a v. Sledge (1913) 7 Ala. App. 650, message knew of the necessary delay 62 So. 390; Western U. Teleg. Co. incident to awaiting the opening of v. Harris (1909) 91 Ark. 602, 24 L.R.A. the receiving office the next day, and (N.S.) 1283, 121 S. W. 1051; Western he therefore was not justified in withU. Teleg. Co. v. Cowardin (1914) 113 holding or failing to give information Ark. 160, 168 S. W. 1133; Carswell v. that there would necessarily be conWestern U. Teleg. Co. (1910) 154 N. C. siderable delay in sending the message. 112, 32 L.R.A.(N.S.) 611, 69 S. E. 782; The rule is, we think, well established Mackorell Bros. v. Western U. Teleg. by the authorities that 'if a telegraph Co. (1912) 90 S. C. 498, 73 S. E. 359, company is unable, through a disrehearing denied in (1912) 90 S. C. arrangement of its lines or other cause, 502, 73 S. E. 875; Western U. Teleg. to do what it makes a business of Co. v. Bruner (1892) Tex.

doing, it must inform those who wish S. W. 149; Western U. Teleg. Co. v. to employ it of the fact, and thus Taylor (1914) Tex. Civ. App. acquaint them with the advantage of 167 S. W. 289. See also Western U. employing other means.' ... This Teleg. Co. v. Hicks (1916) 197 Ala. 81, principle, we think, demands that 72 So. 356; Cates v. Western U. Teleg. where the company's transmitting Co. (1909) 151 N. C. 497, 24 L.R.A. agent knows, or, under the circum(N.S.) 1286, 66 S. E. 592; Western U. stances, should know, that on account Teleg. Co. v. Hargrove (1896) 14 Tex. of the closure of the receiving office Civ. App. 79, 36 S. W. 1077. Compare there will be delay in delivering an Given v. Western U. Teleg. Co. (1885) urgent message which is intended for 24 Fed. 119; Western U. Teleg. Co. v. immediate delivery, it is incumbent on Perry (1912) 3 Ala. App. 247, 56 So. him to so inform the sender; and if he 824; Western U. Teleg. Co. v. Georgia fails to do so, the company is liable Cotton Co. (1894) 94 Ga. 444, 21 S. E. for damages resulting from such 835; Western U. Teleg. Co. v. Neel neglect.” (1894) 86 Tex. 368, 40 Am. St. Rep. In Western U. Teleg. Co. v. Bruner 847, 25 S. W. 15; Western U. Teleg. (1892)

Tex. . 19 S. W. 149, it was Co. v. McMillan, Tex. Civ. App.

held that a telegraph company is 30 S. W. 298; Western U. Teleg. Co. v. bound to receive and transmit all May (1894) 8 Tex. Civ. App. 176, 27 messages, and that, though it may S. W. 760.

make reasonable rules and regulations The rule was fully and clearly in the conduct of its business, yet if stated in Western U. Teleg. Co. v. the company is not prepared to send Harris (1909) 91 Ark. 602, 24 L.R.A. the message when it is received, on (N.S.) 1283, 121 S. W. 1051, supra, as account of the terminal office being follows: "The defendant's agent, when closed at night, its agent should so he received the message, knew or inform the sender. should have known that the message So, in Carswell v. Western U. Teleg. would not be promptly delivered on Co. (1910) 154 N. C. 112, 32 L.R.A. account of the fact that the receiving (N.S.) 611, 69 S. E. 782, which was ar office was closed during the hours of action for delay in transmitting a telethe night. The message was filed for gram summoning a ph cian to the immediate transmission and delivery, bedside of his sick wife, it was hela and its urgency and importance ap that a failure to notify the sender that

the terminal office would probably be duty; and that the failure to do so was closed amounted to a waiver of the culpable negligence. Western U. regulations regarding office hours. In Teleg. Co. v. Hargrove (1896) 14 Tex. that case it was said: “If the sender Civ. App. 79, 36 S. W. 1077. had been notified that the message But if the agent has no knowledge, could not be delivered, he could have and is not chargeable with knowledge, communicated with Dr. Brookshire in as to whether the receiving office is some other way, as he afterwards did, open during the night for the delivery and prevented the mental anxiety he of messages, the mere receiving of a suffered from the delay caused by the message does not amount to a waiver defendant's negligence in failing to of the rights of the company to show notify him. The plaintiff had the its office hours, and where the agent right to suppose that his message had informs the sender, at the time the been delivered, if the defendant per message is given, that he does not formed its duty, and it was negligence know whether the terminal office is a not to inform him of the true situa night office or not, the company does tion."

all that is required of it, and cannot In Western U. Teleg. Co. v. Hill be held liable for delay in trans(1909) 163 Ala. 18, 23 L.R.A.(N.S.) mission of the telegram. Western U. 648, 50 So. 248, 19 Ann. Cas. 1058, 21 Teleg. Co. v. Perry (1912) 3 Ala. App. Am. Neg. Rep. 1, it was said: “A 247, 56 So, 824. telegraph company has a right to adopt So, in Given v, Western U. Teleg. rules as to office hours, and have rea Co. (1885) 24 Fed. 119, it was held sonable rules for its own protection; that a telegraph company, having but it also has a right to waive them, offices scattered all over the country, and does waive them as to office hours was not required to keep its various when it accepts a message for trans agencies informed of the business mission and delivery without the office hours of every other office. hours, without informing the sender And in Western U. Teleg. Co. v. of such rules, or without explaining Georgia Cotton Co. (1894) 94 Ga. 444, to him that it would not be transmitted 21 S. E. 835, it was held that in the or delivered until the time.”

absence of a special contract to transSimilarly, where a message was to mit immediately, or of an express be telephoned to the sendee from the request for information, it is not receiving office, and the initial opera obligatory on a telegraph company to tor knew this, and knew that the acquaint a customer with the office telephone exchange would be closed on hours of the company at the point to Sunday, when the message would which a message delivered by him is arrive, it was held to be actionable directed. negligence to fail to notify the sender So, in Western U. Teleg. Co. v. Neel of the probable delay. Western U. (1894) 86 Tex. 368, 40 Am. St. Rep. 847, Teleg. Co. v. Hicks (1916) 197 Ala. 81, 25 S. W. 15, it was held that a telegraph 72 So. 356.

company had the right to maintain Where a telegraph company, through reasonable office hours, and was not mistake of its agent, received obliged to deliver messages outside of message to be delivered at a place such hours, and that such regulations where it had no office, it was held that were binding on the sender regardless the agent should have inforned the of whether he had notice of the office sender that it had no office at the place hours. The court said: “The reasonaddressed; that the fact that the agent ableness of a regulation as to hours of did not know the sender, or where to business is sufficiently obvious to find her, was

for the suggest to the sender of a message company's failure to perform its con who desires its delivery at an tract; that it was the agent's duty to usually early hour for business, the obtain from the person sending the propriety of making inquiry before he message the necessary information to enters into the contract." That case enable the company to perform its was followed in Western U. Teleg. Co.

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