Beasley v. Western Union Tel. Co.

Decision Date29 May 1889
Citation39 F. 181
PartiesBEASLEY v. WESTERN UNION TEL. CO.
CourtU.S. District Court — Western District of Texas

Tarleton & Kellar for plaintiff.

John A & N. O. Green, for defendant.

MAXEY J., (charging jury.)

The plaintiff, Robert Beasley, brings this suit to recover damages of the defendant for the failure to deliver a telegram to him at Wallis, a station on the San Antonio &amp Arkansas Pass Railway. The message, alleged in the petition to have been delivered by Miss Annie Melas, as agent of plaintiff, to the defendant's operator at San Antonio for transmission, is set out as follows:

'SAN ANTONIO, TEXAS, JANUARY 11, 1888.
'To Robert Beasley, News Agent, S.A. & A.P. Ry. train, Wallis, Texas:
'Dell is worse, come at once.
(Signed) 'SISTER ANNIE.'

The telegram has reference to the wife of plaintiff, who (the wife) was then in a critical condition, and who died on the morning of the 11th, and, as stated by Miss Melas, between the hours of 11 and 12 o'clock. Referring to that telegram, it is alleged by the plaintiff 'that said message was written by said Annie Melas upon a half sheet of common commercial note paper, and when the same was delivered, as aforesaid, to the agent of defendant, he, the said agent, of his own volition, and without the request of the said Annie Melas, copied, or rewrote, said message upon one of the telegraphic blanks of said defendant. ' It is insisted, on the contrary, by the defendant that Miss Melas herself wrote the body of the message, including the signature, and that at her request the agent of defendant, Towhey, merely inserted the address, and that Miss Melas so wrote the message on one of the printed forms or blanks which are in general use by the defendant company; the same being as follows:

Form No. 46.

THE WESTERN UNION TELEGRAPH COMPANY.

NIGHT MESSAGE.

The business of telegraphing is subject to errors and delays, arising from causes which cannot at all times be guarded against, including sometimes negligence of servants and agents whom it is necessary to employ. Errors and delays may be prevented by repetition for which, during the day, half price extra is charged in addition to the full tariff rates.

The Western Union Telegraph Company will receive messages, to be sent without repetition during the night, for delivery not earlier than the morning of the next ensuing business day at reduced rates, but in no case for less than twenty-five cents tolls for a single message, and upon the express condition that the sender will agree that he will not claim damages for errors or delays or for non-delivery of such messages, happening from any cause, beyond a sum equal to ten times the amount paid for transmission; and that no claim for damages shall be valid unless presented in writing within thirty days after sending the message.

Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance a special charge will be made to cover the cost of such delivery, the sender hereby guaranteeing payment thereof.

The Company will be responsible to the limit of its lines only, for messages destined beyond, but will act as the sender's agent to deliver the message to connecting companies or carriers, if desired, without charge and without liability.

THOS. T. ECKERT, General Manager. NORVIN GREEN, President.

Receiver's No. Time Filed. Check.

. . ., 188

Send the following night message, subject to the above terms, which are the above terms, which are hereby agreed to.

To . . .

READ THE NOTICE AND AGREEMENT AT THE TOP.

You observe a clause in the printed form to the effect 'that no claim for damages shall be valid unless presented in writing within thirty days after sending the message;' and the evidence, without contradiction, clearly showing that no claim for damages was made until the following July, about six months after the death of the wife, the defendant contends that the suit is not maintainable. There is evidence tending to show that Miss Melas did not read the printed matter of the company's form, and was ignorant of its contents. Whether Miss Melas wrote the message or the body of the message on the printed form furnished by the defendant is a question of fact which you will determine from an examination of all the facts and circumstances in evidence. If she did thus write the message,-- if she wrote it on a form containing the stipulation which I have read to you as to the time for presenting a claim for damages,-- there are certain principles of law bearing upon that question which it becomes necessary for me to call to your attention.

1. It is immaterial whether Miss Melas read the printed matter or not. Upon this point the supreme court of this state say:

'The sound and practical rule of law in such cases is that in the absence of fraud or imposition a party to a contract, which has been voluntarily signed and executed by him, with full opportunity for information as to its contents, cannot avoid it on the ground of his own negligence or omission to read it. ' Womack v. Telegraph Co., 58 Tex. 179.

In the same connection the court quote the following extract from an opinion delivered by the supreme court of Michigan:

'This printed matter on the face of the paper could hardly escape the attention of any one not naturally or purposely blind who should write a message upon the paper. He must at least know that there is some printed matter on the face of the paper, and he must be held to know that it had been placed there for some purpose connected with the message. It is therefore no excuse for him to say he did not read the printed matter before his eyes. It was gross negligence on his part if he did not. The printed blank, before the message was written upon it, was a general proposition to all persons of the terms and conditions upon which messages would be sent. By writing the message under it, signing and delivering it for transmission, the plaintiff below accepted the proposition, and it became a contract upon those terms and conditions. ' Id. 180; citing Telegraph Co. v. Carew, 15 Mich. 536. See, also, Telegraph Co. v. Neill, 57 Tex. 285 et seq.

I do not say, gentlemen, that Miss Melas was guilty of gross negligence in failing to inform herself of the contents of the printed form, but her want of knowledge, under the circumstances, is due to her failure to avail herself of the opportunity she had of obtaining the information, and she and the plaintiff, for whom she was acting, are chargeable with knowledge of what the printed form contained.

2. As before stated to you, the printed form provides that no claim for damages, unless presented in writing within 30 days shall be valid. Referring to a stipulation of that character in a printed telegraphic blank form the supreme court of this state, speaking through Mr. Justice STAYTON, say: 'agreements of this character are held to violate no rule based on public policy, and to be reasonable and obligatory. ' Telegraph Co. v. Rains, 63 Tex. 28. The testimony in this case shows that the plaintiff, at the time of the death of his wife, resided in San Antonio; that his wife died on the 11th of January; that he reached his home on the night of the same day; and that within three or four days thereafter he was shown by his sister-in-law the message which she says she delivered to Towhey. He therefore had ample time to present his claim for damages to the defendant, and no reason is disclosed or attempted to be shown by the testimony for his failure to present it within the 30 days. You are instructed, therefore, that if Miss Melas wrote the body of the message on the printed form, to which you have been referred, and requested Towhey to write the address, then the plaintiff is not entitled to maintain this suit, and you will find in favor of the defendant. If, however, you conclude from the testimony that, as alleged in the petition, Miss Melas delivered to...

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