Summary
In Freeman v. Western Union Tel. Co., 147 S.C. 423, 145 S.E., 294, the Court refused to enforce the stipulation where apparently no written claim was ever filed and suit was brought sixty-five days after receipt by the defendant of the message for transmission; however, in the latter case due to defendant's negligence plaintiff did not know of the undelivered telegram until fifty-two of the sixty days had elapsed.
Summary of this case from Phillips v. Western Union Telegraph Co.Opinion
12454
May 28, 1928.
Before CALHOUN A. MAYS, SPECIAL JUDGE, Spartanburg, October, 1926. Affirmed.
Action by E.J. Freeman against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.
Following is the order of Special Judge Mays, refusing a new trial:
This matter comes before me on motion for a new trial made by defendant after the verdict in favor of plaintiff for $400. It appears that on July 14, 1925, one Bruce Owens, then at Blowing Rock, N.C., and having an interest in several orchestras at summer resort hotels, desired a man to direct his orchestra at Carolina Beach, near Wilmington. One Hamilton, a member of his orchestra at Blowing Rock, had recommended to him for the position the plaintiff, who was director of music at Clemson College, and without employment during the summer vacation period. Therefore, Bruce Owens on this date delivered to the defendant, at its office in Blowing Rock, the following message for transmission to the plaintiff:
"Could you consider taking over direction of my nine-piece orchestra at Carolina Beach, Wilmington. Can offer you about thirty-five dollars a week plus expenses. Contract closes September seventh. Excellent beach. Nice summer work. Butterfly Hamilton suggests you. Please wire here immediately."
The message was promptly transmitted to the defendant's office at Clemson College and carried by a messenger to plaintiff's home. The messenger, finding the house closed, left the message behind the screen door on the front porch. The plaintiff never knew of the existence of the message, and Owens never knew of its nondelivery, until the season for such work had practically closed.
It further appears that, had Owens been notified of the nondelivery of the message, he could have and would have used other means within his reach to have gotten the message to the plaintiff, and that, had the plaintiff received the message, he would have accepted the employment. He was unable to get employment during the entire period mentioned in the telegram. The defendant's motion raises three main questions, which were very ably argued by counsel for each party. These will be discussed seriatim.
First. Does the complaint state a cause of action?
This question is answered affirmatively on the authority of Simkins v. Western Union Telegraph Co., 97 S.C. 415. 81 S.E., 657, as follows:
"The complaint is sufficient if it alleges knowledge of facts and circumstances from which a person of ordinary intelligence and prudence should have known that such damages would result from delay in delivering the message, for facts are well pleaded which may, by reasonable intendment, be inferred from the facts and circumstances directly alleged."
Second. Is the action barred by failure of the plaintiff to present the claim in writing within 60 days after the message was filed with the company for transmission?
The contract provides in one of the printed stipulations on the back of the form used for receiving messages as follows:
"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 message is filed with the company for transmission."
The message was filed July 14th. The plaintiff's first knowledge that such a message had been sent was on September 4th, when he returned to Clemson and found it on the front porch. The action was commenced without any previous notice by service of summons and complaint on September 17th, all the same year. The serving of the summons and complaint is sufficient written notice, if within time. Smith v. Telegraph Co., 77 S.C. 378, 58 S.E., 6, 12 Ann. Cas., 654.
The provision quoted has been approved by the Interstate Commerce Commission, and is valid and binding under the Federal Act of June 18, 1910. 36 Stat., 539.
The question is one of construction. The defendant asked for a literal construction, which would count the 60 days from the date of filing, July 14th, notwithstanding the fact that plaintiff had no means of knowing that it had ever been filed until he found the message on September 4th. The Courts, however, both before and since this provision of the contract was given the sanctity of the law by virtue of the Act of Congress and the approval of the Interstate Commerce Commission has been given a reasonable construction, which makes an exception of a case such as this, where the plaintiff, through the fault of the defendant, had no means of knowing of the telegram until the 60 days had almost expired. Having brought his action within 13 days after knowledge of the telegram, he was within time. Mr. Justice Holmes, in construing this identical provision in the Supreme Court of the United States in Western Union Telegraph Co. v. Czizek, 264 U.S. 286, 44 S.Ct., 329, 68 L.Ed., 685, says:
"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."
Third. Was the negligence of the defendant the proximate cause of plaintiff's damage?
The law appears well established that, where the message is neither an acceptance of a previous offer nor itself a definite offer, but merely an invitation to submit an offer or to meet or correspond with the sender for the purpose of negotiation, the damage is too remote to sustain an action 37 Cyc., 1760; Bird v. Western Union Telegraph Co., 76 S.C. 345, 56 S.E., 973; Harmon v. Western Union Telegraph Co., 65 S.C. 490, 43 S.E., 959.
On the other hand, the law seems to be that, where it contains an offer, which would have been accepted but for its nondelivery caused by the negligence of the company, the loss of the employment is the proximate result of the negligence, and damage can be recovered. 37 Cyc., 1762; Simkins v. Western Union Telegraph Co., 97 S.C. 413, 81 S.E., 657; Wallingford v. Western Union Telegraph Co., 53 S.C. 410, 31 S.E., 275; and 60 S.C. 201, 38 S.E., 443, 629; Lathan v. Western Union Telegraph Co., 75 S.C. 129, 55 S.E., 134.
The question as to whether the telegram in the case at bar is to be covered by the one or the other of the foregoing rules is one of construction. Does the message constitute an offer in such terms that the defendant should have so construed it and been put on notice that its nondelivery would probably cause the damage, or was it a mere invitation to negotiate? Bearing in mind that the message is an informal communication between laymen, and is not couched in the exact technical language which lawyers might have used, I am of the opinion that an offer was intended, and that the plaintiff would have accepted and procured the employment had the message been received by him. The first sentence of the message, "Could you consider taking over direction of my nine-piece orchestra at Carolina Beach, Wilmington?" was merely an introduction to the main purpose of the telegram. The next sentence, "Can offer you about thirty-five dollars a week plus expenses," was the sender's way of saying, "I offer you," etc., and among laymen is so understood. The message itself shows that Owens had already investigated the plaintiff's qualifications and desired him for the position. This is shown by the sentence, "Butterfly Hamilton suggests you."
There is a line of cases in which messages have been considered as mere inquiries in the light of the relationship of the parties, which otherwise might have been considered as definite offers, as in Moulton v. Kershaw, 59 Wis. 316, 18 N.W., 172, 48 Am. Rep., 516:
"In consequence of a rupture in the salt trade, we are authorized to offer Michigan fine salt, in full carload lots of 80 to 95 barrels, delivered at your city, at 85 cents per barrel, to be shipped per C. N.W.R.R. Co. only. At this price it is a bargain, as the price in general remains unchanged. Shall be pleased to receive your order."
And, in Cherokee Training Extract Co. v. Western Union Telegraph Co., 143 N.C. 376, 55 S.E., 777, 118 Am. St. Rep., 806:
"Kindly advise us by wire Monday if you can use about 1,500 creosote barrels between now and January 1st, at 95 cents each, delivered in carload lots."
The messages were considered as inquiries such as dealers frequently send their usual trade connections. There is no such relationship in this instance, and I do not think that the message could fairly receive such an interpretation.
It is ordered that each of defendant's grounds of motion for a new trial be, and are hereby, overruled.
Messrs. Francis R. Stark, and Evans Galbraith, for appellant, cite: Nonsuit proper where failure to state cause of action: 80 S.C. 545; 75 S.C. 71; 72 S.C. 191; 67 S.C. 122. Cases distinguished: 97 S.C. 413; 264 U.S. 286. No cause of action here: 37 Cyc., 1760; 76 S.C. 345; 65 S.C. 490. Special damages must be alleged and proved before telegraph company is liable: 25 S.C. 68; 40 S.C. 524; 70 S.C. 418; 71 S.C. 29; 124 U.S. 444. Failure to receive message where company not at fault relieves company from liability: 37 Cyc., 1688; 245 U.S. 644; 256 U.S. 566; 266 U.S. 92. Refusal of motion for new trial error here: 85 S.C. 258. Message stipulations binding: 256 U.S. 566. Federal law controls where interstate message concerned: 94 S.C. 870; 96 S.E., 248; 112 S.E., 117; 120 S.E., 715. Stipulation requiring the presentation of claim within a specific period upheld by Courts: 21 Wall., 264; 64 S.E., 117; 15 S.W. 468; 231 Fed., 405; 243 U.S. 644; 251 U.S. 27; 212 N.Y.S., 628; 138 Atl., 233; 266 S.W. 179; 275 S.W. 570; 266 U.S. 92; 241 U.S. 190; 244 U.S. 332; 272 Fed., 223.
Messrs. Lanham Lanham, for respondent, cite: Demurrer to complaint improper here: 97 S.C. 413. As to time of presentation of claim: 159 Fed., 643; 16 L.R.A. (N.S.), 870; 77 S.C. 378; 37 Cyc., 1690; 101 S.C. 183; 104 S.C. 396; 264 U.S. 286. Definite offer: 272 Fed., 224.
May 28, 1928. The opinion of the Court was delivered by
Action for damages alleged to have resulted from the negligent failure of the defendant to transmit and deliver, with reasonable promptness, a certain business telegram, addressed to the plaintiff.
The facts appear to be as follows: On July 14, 1925, one Bruce Owens, at Blowing Rock, N.C., lodged with the defendant, for transmission and delivery, a telegram addressed to the plaintiff at Clemson College, S.C. reading thus:
"Could you consider taking over direction of my nine piece orchestra at Carolina Beach Wilmington can offer you about thirty-five dollars a week plus expenses contract closes September seventh excellent beach nice summer work Butterfly Hamilton suggests you please wire here immediately."
The message was received promptly at the Clemson College office, and was sent by a messenger to the home of the plaintiff for delivery. The messenger found the house closed; the plaintiff having left for Spartanburg, where he spent the summer with the family of his wife. The messenger, after going to the drug store inquiring for the plaintiff, returned to the house and left the telegram in a crack in or under the door, where it remained until the plaintiff's return in September.
The plaintiff was director of music at Clemson College, and was on vacation from June to September, and was, at the time, unemployed. The sender of the telegram, Owens, was director of music at the hotel at Blowing Rock and at Carolina Beach, near Wilmington, N.C. He needed a director at Carolina Beach, and for that reason sent the telegram to the plaintiff. The plaintiff testified that, if he had received the telegram in due season, he would have accepted the proposition of Owens, the loss of the position costing him $350 and living expenses, aggregating $750.
It is alleged in the complaint:
"That said message contained an offer from Bruce Owens to the plaintiff for employment for the summer months, which alone would have paid plaintiff as least $350.00."
The defendant's answer was, in substance, a general denial of the charges contained in the complaint and a special defense that the claim of the plaintiff had not been presented in writing within 60 days after the message had been received by the company for transmission, as provided for in the printed terms upon which the telegram was received for transmission.
On the back of the telegram, under the heading: "All messages taken by this company are subject to the following terms," was the following:
"6. 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 message is filed with the company for transmission."
It is conceded that the service of the summons and complaint on September 17th was the only notice of his claim for damages presented by the plaintiff; this was 65 days after the message had been received for transmission, and 13 days after the first notice received by the plaintiff on September 4th that a telegram had been sent.
The defendant at the appropriate stages of the trial made a motion for a nonsuit, a motion for a directed verdict, and a motion for a new trial upon practically the identical grounds. The motions were overruled, and a verdict in favor of the plaintiff for $400 actual damages was returned by the jury.
The exceptions are based upon the refusals of said motions, and present the two propositions:
(1) That the claim was not filed within the 60-day limit provided for in the terms upon which the telegram was received for transmission.
(2) That the telegram contained only a proposal, and not a definite offer of employment; and that what the plaintiff might have replied to such proposal cannot form the basis of an action for damages.
The evidence discloses great carelessness in the handling of a message which bore upon its face an important business proposition, at a season of the year of the greatest moment to the particular profession to which the plaintiff was attached. Under these circumstances the Court will not be hypercritical in its construction of a telegram, or in the enforcement of a clause practically of forfeiture.
The telegram was stuck under the door by the messenger; he is presumed to have returned the delivery sheet unsigned; this was, or should have been, notice to the operator that the telegram had not been delivered; the wires were at his command to notify the sender by service message that the addressee could not be found; he did not do this; the sender, if he had, could have found the plaintiff elsewhere. A telegram means urgent business, and its handling should be commensurate with this acknowledged fact.
I. As to the 60-day time limit for presenting claim: By the inexcusable neglect of the defendant the plaintiff was in ignorance of the fact that a telegram had been sent for nearly 2 months, from July 14th to September 4th; 52 days of the 60 had been consumed by that negligence. Surely they should not be charged against the plaintiff. The most that the defendant could claim under this limitation, 86 per cent. of which had been lost to the plaintiff by no fault of his, is that the plaintiff should have presented his claim, if not within 60 days after notice of the non-delivery had been received by the plaintiff, within a reasonable time thereafter. It was presented within 13 days, which we cannot hold was an unreasonable delay.
The Supreme Court of the United States, in discussing this identical clause, said in Western Union Tel. Co. v. Czizek, 264 U.S. 281, 44 S.Ct., 328, 68 L.Ed., 682:
"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."
We think that there can be no difference between the receipt of this information after the 60 days have elapsed and its receipt a few days before; the same rule of reasonable time should be applied in both instances.
II. The construction of the telegram: The defendant contends that the telegram was nothing more than a proposal, and that, upon the speculation of what the plaintiff would have replied, or what the sender would have rejoined to his reply, an action cannot be predicated.
We do not so construe the telegram. It means, and can mean nothing else: "Mr. Freeman, if you are in a position to consider the proposition, I offer you $35.00 per week and expenses" for the indicated service. In other words, Owens left it to Freeman to decide the condition upon which the offer was made, and necessarily bound himself to the offer upon that condition. Freeman was in a position to decide the issue; would have decided it, and would have accepted the proposition, as he testifies.
The order of his Honor, Special Judge Mays, refusing the defendant's motion for a new trial, so clearly expresses the law of the case that it is adopted as the conclusion of the Court.
The judgment of this Court is that the judgment, of the Circuit Court be affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.