Clement v. Western Union Tel. Co.

• Decision Date: 03 September 1884
• Parties: Charles H. Clement v. Western Union Telegraph Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

137 Mass. 463

Charles H. Clement v. Western Union Telegraph Company

Supreme Court of Massachusetts

September 3, 1884

Argued November 9, 1883 [Syllabus Material]

Essex. Tort for injuries sustained by the plaintiff in consequence of the neglect of the defendant seasonably to deliver a message sent by telegraph. In the Superior Court, the case was sent to an auditor, who found the following facts:

On April 27, 1880, the plaintiff, who lived in Haverhill, had a libel of divorce pending in the Supreme Judicial Court, then sitting in Salem, and had arranged with H. P. Moulton, his attorney, to give him notice when the case was to come on. The case being in order for the next day, Moulton, on the 27th, left at the office of the American Union Telegraph Company in Salem the following message: "Salem, April 27, 1880. To Charles H. Clement, 2 Benjamin Street Haverhill, Mass. Come to-morrow with witnesses. H. P Moulton."

The office at the time was in charge of the office boy only, and nothing was said as to whether the American Union Telegraph Company had a line to Haverhill or not. That company had no line to Haverhill, and the operator, upon her return to the office, finding this message, endeavored ineffectually to communicate with Moulton, but not finding him at his office she left a note for him stating the fact, and that the message had been, or would be, sent by the Western Union Telegraph Company. Not being able to inform Moulton that her company had no line to Haverhill, she tore off the heading printed upon the blank above the message written, and sent the message to the office of the Western Union Telegraph Company, also in Salem, for transmission to Haverhill; and it was there received by the defendant's agent and duly transmitted to their office in Haverhill. The message did not appear to have been rewritten upon a blank of the defendant company, but the terms and conditions upon which the defendant by its rules provided that messages should be sent over its line, as set forth in the form or blank in use by it, were in fact known to Moulton, and this form of blank had been in use by him in sending messages by the defendant's line. Subsequently to the sending of the message, and after April 27, the operator of the American Union Telegraph Company explained to Moulton how it was sent by that line and Moulton said to her that it was all right.

The form in use by the defendant corporation contained, among other stipulations, the following: "All messages taken by this company subject to the following terms: To guard against mistakes or delays, the sender of a message should order it repeated; that is, telegraphed back to the originating office for comparison. For this, one half the regular rate is charged in addition. It is agreed between the sender of the following message and this company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same."

The message was received at the office of the defendant in Haverhill about fifteen minutes before eight o'clock in the evening of April 27, 1880. It was held at the office until the hour of closing, at eight o'clock, when it was given with others to the messenger boy for delivery. The plaintiff lived at No. 2 Benjamin Street, in Haverhill distant from the defendant's office something more than half a mile. There was no evidence whether any effort was made by the messenger to deliver the message, except the fact that the message was returned to the office the next morning with the report that he could not find the...