Becker v. W.U. Tel. Co.
| Citation | 7 N.W. 868,11 Neb. 87 |
| Parties | JOHN P. BECKER, PLAINTIFF IN ERROR, v. THE WESTERN UNION TELEGRAPH COMPANY, DEFENDANT IN ERROR |
| Decision Date | 14 January 1881 |
| Court | Nebraska Supreme Court |
ERROR to the district court of Douglas county. It was an action for damages, arising out of the alleged negligence of the defendant in transmitting and delivering to the plaintiff a telegraphic dispatch in terms different from those in the message left for transmission. On Nov. 28, 1873, the plaintiff telegraphed from Columbus, Nebraska, to W. R Preston & Co., commission merchants, in New York city, to know what they could sell 20,000 bushels of wheat for, to be delivered in December, to which W. R. Preston & Co. replied in the following terms: Instead of this dispatch being delivered to the plaintiff, one was delivered to him in the following terms: Thereupon, and on the same day, the plaintiff instructed Preston & Co. to sell the 20,000 bushels, and to apply five cars, then in transit, on the sale. On the next day, Nov. 29, plaintiff received from Preston & Co. a dispatch informing him that they had sold 20,000 bushels at one dollar fifty, to be delivered in December. This resulted in a telegraphic correspondence, from which the mistake which had occurred in the first dispatch became developed, but not until after the contract had been made by Preston & Co. for the sale of the wheat at $ 1.50. The wheat was all delivered by plaintiff as contracted for by Preston & Co., and this suit was brought to recover damages sustained by the plaintiff, by reason of the false information conveyed in the first dispatch delivered to plaintiff, purporting to have come from W. R. Preston & Co. Upon a trial before SAVAGE, J and a jury, verdict was rendered in favor of plaintiff for $ 6.50 (amount paid for dispatch and interest) and costs, and from judgment thereon plaintiff came here upon a petition in error.
AFFIRMED.
George W. Doane, for plaintiff in error, cited Tyler v. Telegraph Co., 60 Ill. 421. Rittenhouse v. The Independent Line of Telegraph, 44 N.Y. 263. Leonard v. N.Y. Albany & Buffalo Electric Co., 41 N.Y. 544. De Rutte v. N.Y. Albany & Buffalo Electric Co., 30 How. Pr. Rep., 403. Western U. Tel. Co. v. Carew, 15 Mich. 255. Shearman & Redf. on Neg., sec. 559.
James M. Woolworth, for defendant in error.
The alleged errors to be considered pertain to the instructions to the jury. The charge was full, covering every point arising in the case necessary for the jury to be informed upon, and was evidently prepared with care. We shall notice only those portions of it which counsel has specially pointed out as being objectionable.
It is said by counsel in his brief that "the most serious error committed" is in those portions of the charge wherein "reference was made to the right of the defendant to adopt rules and regulations whereby to restrict its liability in this class of cases, and the effect of the adoption of such rules and regulations." The ground taken on this point, being that there was nothing in the pleadings by which these rules and regulations were made at all material. In all this we think counsel labors under a mistake. Evidently the rules and regulations referred to by the judge were those copied into the answer as being on the message blanks, and forming the basis of the alleged contract between the Telegraph Company and Preston & Co. the senders of the message. The most important of these rules, in fact the only one of them necessary to be here considered, is that which provided that the company should "not be liable for mistakes * * * of any unrepeated message beyond the amount received for sending the same." The jury were told that this was not an unreasonable regulation on the part of the company, and "if brought to the knowledge of persons dealing with them, and assented to by such persons," would be binding upon them. The effect of such regulation was given in these words, which we accept as a fair statement of the law: "If, therefore, you find from the evidence that, at the time this telegram was sent, the rules and regulations which have been offered in evidence were in force along the defendant's line, and such regulations were brought to the knowledge of the senders of the message, or the plaintiff, and assented to by them, and the message in question was not directed to be repeated, and that the defendant used suitable instruments and machinery, and employed skillful operators, who, in the transmission of the message, used ordinary care, and were not guilty of actual negligence in the premises, then the plaintiff cannot recover anything beyond the price of the message and interest thereon. " This, we are of opinion, stated the law correctly, and was necessary to a fair comprehension of the pleadings and evidence by the jury. The fact that the judge referred to these printed conditions upon which alone messages would be sent as "rules and regulations" instead of "agreement" or "contract" is of no importance. We suppose that they were essentially rules and regulations until accepted by delivering the message for transmission subject to them, when they at once became a binding contract between the company and the senders. Wolf v. Western Union Telegraph Company, 62 Pa. 83, 1 Am. Rep. 387.
The plaintiffs' counsel tendered several instructions embodying the views for which he now contends on this question. They are substantially that a telegraph company cannot, by a rule or regulation like the one just referred to, limit liability for errors committed in the transmission of messages. That such a rule is unreasonable and contrary to public policy. Further, "that the defendant, in order to exonerate itself from responsibility for the mistake, should have shown how it occurred, and in the absence of such proof the jury will be justified in presuming a want of ordinary care on the part...
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