Western Union Tel'g Co. v. Bibb , 136 Ky. 817 ( 1910 )

Opinion oe the Court by

Judge Hobson

— Reversing.

Leslie Bibb lived in Owensboro. In September, 1905, his wife, with their two little children, went to visit her mother at Valley Park, Mo., about eighteen miles from St. Louis. On Sunday, October 15th, at 4:42 p. m., the following message was delivered to the Western Union Telegraph Company at Yalley Park to be sent to him: “Doctor says Beulah has diphtheria. May die before midnight.” The message reached Owensboro at 5:42 p. m. The manager 'looked in the city directory, but Bibb’s name was not in it. It was a, custom of the office-when they could not find a man’s name in the directory to inquire at the postoffice; but the postoffice was closed at 5:40 on Sunday, and so the manager delivered the message to a delivery boy. By a regulation of the company the office at Owensboro was only kept open on Sunday from 8 to 10 in the morning and from 4 to 6 in the afternoon. The messenger, being unable to find Bibb, returned the message undelivered. The next morning he took the message to the postoffice, and, learning Bibb’s address, delivered the message to him about 8 o’clock. The child died at 1 o’clock that night. If the message had been delivered to •him when received, he could have taken a train which left Owensboro at midnight, and thus reached Yalley Park about 8 o’clock the next morning-. When he received the message at 8 o ’clock the next morning, the first train he could take was one leaving Owensboro at noon on that day, and this took him to Valley Park about 10 o’clock that night. He reached Valley Park in time to attend the funeral of his child, and he could not have reached it in any event before the child died. He brought this suit against the telegraph company to recover damages for the delay in the delivery of the telegram, and in the circuit court recovered a judgment for $300. The telegraph company appeals.

The only question we deem it necessary to consider is whether the regulation of the telegraph company as to the hours of closing its office on Sunday was reasonable and protected it,. although the sender of tbo message was not notified of,the regulation, if it used ordinary care under the circumstances.

Bibb’s name was not only not in the directory, but he was not a housekeeper. His place of residence was at Seventh and Sycamore streets, some distance from the telegraph office. His place of business was near the telegraph office, but the telegraph manager did not know this, and nobody was there on Sunday. The message could not have been delivered there, and no information could have been gotten there as to where he was. Only eighteen minutes elapsed after the receipt of the message before the closing hour of the office, and it cannot be said that there was a lack of ordinary care in failing to learn where Bibb was in eighteen minutes under the circumstances. So that, if the regulation of the company is valid and protects it, the jury should have been instructed peremptorily to find for the defendant. The circuit court submitted to the jury the reasonableness 'of the regulation, and also in effect told them that it did not protect the telegraph company, unless the sender of the message had notice of it. The regulation had been in effect in Owensboro for a great many years. There is no controversy in the record as to the facts. The volume of business done there is small on Sunday, amounting in all not over $1.50 a day. The statute of the state requires that no work shall be done on Sunday except in matters of necessity and mercy. A telegraph company, like other persons, cannot be required to do business all day Sunday.

While a railway company may run trains on Sunday, it is not required to run trains on Sunday as on other days. The regulation of the telegraph company closing the office on Sunday except during the hours named was a reasonable and proper' one. In Western Union Telegraph Company v. Van Cleave, 107 Ky. 469, 54 S. W. 828, 22 Ky. Law Rep. 55, 92 Am. St. Rep. 366, we said:

“We think it likewise competent for such companies to establish reasonable hours within which their business may be transacted, and they may fix those hours with reference to the quantity of business done. They may not be required to employ both a day and night messenger, if it be apparent that the business of the office will not justify such employment. This we understand to be the rule everywhere. Telegraph Co. v. Harding, 103 Ind. 505, 3 N. E. 172; W. U. Co. v. Wingate, 6 Tex. Civ. App. 394, 25 S. W. 439; W. U. Co. v. McCoy, Tex. Civ. App., 31 S. W. 210. Under the proof on the points last named, the law is for the defendant and a peremptory instruction should have been given.”

In Western Union Telegraph Company v. Steenbergen, 107 Ky. 472, 54 S. W. 829, 21 Ky. Law Rep. 1290, we also said:

“Again, the office hours of the company where the message was to be delivered to the sendee were from 7 o’clock a. m. to the same hour in the evening, and the message in question, having been received during the night of the 19th, need not have been delivered until within a reasonable time after 7 o’clock on the morning of the 20th.”

In Western Union Telegraph Co. v. Crider, 107 Ky. 600, 54 S. W. 963, 21 Ky. Law Rep. 1336, we again said: “We think, under the proof, the court should have instructed peremptorily for the company. It seems to be well settled that telegraph companies may make reasonable rules and regulations for the conduct of their business, and may, where the volume of the business does not require it or justify the expense, close their office for night delivery. Ordinarily whether such a rule or regulation is a reasonable one is a. question for the court, and not one for the jury. And certainly such is the law when, as in this case, there is no contrariety of testimony on the subject.” See also Davis v. Western Union Telegraph Co., 66 S. W. 17, 23 Ky. Law Rep. 1758; Western Union Telegraph Co. v. Scott, 87 S. W. 289, 27 Ky. Law Rep. 975.

In none of these cases did it appear that the sender of the message had notice of the regulation, and, while there is some conflict of authority on the question, the great weight of authority sustains the rule we have heretofore laid down. In Sweet v. Postal Telegraph Co., 22 R. I. 344, 47 Atl. 881, 53 L. R. A. 732, the Supreme Court of Rhode Island adopting the same view said: “The controlling question is whether the receipt of the message for transmission after the terminal office had closed was an act of negligence. This depends upon whether the receiving agent was bound to know the time of closing in the terminal office. The decisions on this point are practically unanimous' that a receiving agent is not so bound, for the reason that in view of the great number of telegraph offices all over the country, and their varied conditions, some large and requiring constant service, others small and with infrequent calls, a requirement that every agent should know the hours of every office would be unreasonable, if not impossible. To hold the company to such a duty would either require a uniform time of closing in all offices which are not constantly open, or a directory of all such offices with their various hours at different seasons of the year. The former alternative would compel a service at small stations far beyond their needs, and 'the latter, as Mr. Justice Miller said in Given v. Western Union Telegraph Co. (C. C.) 24 Fed. 119, would be ‘onerous and inconvenient to a degree which forbids it to be treated as a duty to its customers for neglect of which it must be held liable for damages.’ ” In a note to that case, on page 733 of 53 L. R. A. the learned editor thus states the rule:

“The general rule is that, in the absence of a special contract to transmit a telegram immediately, or an express request for information as to its delivery, it is not obligatory upon a telegraph company to ■acquaint the customer with the office, hours of the compamy at the point to which a message delivered' by him for transmission is directed.”

The rule is also thus stated in 27 Am. & Eng. Ency. of Law, 1038, 1039; “Similarly, where a message is transmitted to the receiving office after its regular hours, the company is not guilty of negligence, in the absence of a 'special undertaking, in deferring delivery until the next morning. The rule upheld by the weight of authority is that the sender of the message is bound by a reasonable rule fixing office hours without regard to his knowledge of it; but the contrary has been held.”

We therefore conclude that, under the evidence, the court should have instructed the jury peremptorily to find for the defendant. This conclusion makes it unnecessary for us to consider the other questions urged by counsel.

Judgment reversed, and cause remanded for further proceedings consistent herewith.