Fox v. Postal Tel. Cable Co.

• Decision Date: 30 March 1909
• Citation: 138 Wis. 648,120 N.W. 399
• Parties: FOX v. POSTAL TELEGRAPH CABLE CO.
• Court: Wisconsin Supreme Court

138 Wis. 648

120 N.W. 399

FOX

v.POSTAL TELEGRAPH CABLE CO.

Supreme Court of Wisconsin.

March 30, 1909.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by A. O. Fox against the Postal Telegraph Cable Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action for damages for negligence respecting delivery of a telegram.

These facts were stated for a cause of action: Defendant, a New York corporation, at the city of New York, December 19, 1906, at about noon, Eastern time, received from plaintiff a message to be transmitted by its telegraph system to a person in the city of Chicago, at 100 Washington street, for the purpose of avoiding having such person make a useless trip from such city to the city of New York, as he contemplated doing, starting on the 2 o'clock p. m., Central time, train on such day. The message was important, which fact defendant was duly notified of at the time it was delivered for transmission. Defendant was also fully informed of the necessity of the message reaching the person to whom it was addressed before the leaving time of such train on such day.

Had the message been expeditiously transmitted and delivered, it would have been received by the person to whom it was addressed, before 12 o'clock noon, Central time, December 19th aforesaid, and in ample time to have prevented the addressee from starting on the journey to New York. It was received at defendant's office at the Palmer House in Chicago at 46 minutes past 11 a. m., Central time, on the day it was sent but was not delivered at the place to which it was addressed until noon of the next day. By reasonthereof the addressee started and made the journey to New York when he otherwise would not have done so, to the damage of the plaintiff in the sum of $157.37.

Defendant for a defense pleaded, among other things, that plaintiff wrote his message on one of defendant's ordinary blanks containing on the face this language: “The Postal Telegraph Company * * * transmits and delivers this message subject to the terms and conditions printed on the back of this blank. * * * Send the following message without repeating subject to the terms and conditions printed on the back hereof, which are hereby agreed to.” The indorsement contained this language: “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 regular rate is charged in addition. It is agreed between the sender of the message written on the face hereof and the Postal Telegraph Cable 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 beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for nondelivery of an unrepeated message beyond fifty times the sum received for sending the same, unless specially insured. * * *” Plaintiff did not request to have the message repeated nor to have it insured. The sum paid for the service was 40 cents.

The case turned on whether the language of the indorsement was binding upon plaintiff as a part of his contract with defendant respecting the transmission and delivery of the message. In respect thereto the trial court decided in plaintiff's favor, and also found all matters of fact set forth in the complaint, and held, by reason thereof, that plaintiff was entitled to judgment as prayed for in the complaint. Judgment was accordingly rendered.

Tenneys, Hall, Davies & Sanderson, for appellant.

Olin & Butler, for respondent.

MARSHALL, J. (after stating the facts as above).

It may be conceded for the purposes of this case, that the place of the contract between plaintiff and defendant was New York and that by the law of such state the provision on the back of the message was a valid part of the agreement. Elwood v. Western Union T. Co., 45 N. Y. 549, 6 Am. Rep. 140;Breese v. U. S. Tel. Co., 48 N. Y. 132, 8 Am. Rep. 526;Young v. Western U. Tel. Co., 65 N. Y. 163;Kiley v. Western U. T. Co., 109 N. Y. 231, 16 N. E. 75;Pearsall v. Western U. Tel. Co., 124 N. Y. 256-267, 26 N. E. 534, 21 Am. St. Rep. 662. In connection with that, it must be conceded, since the tort was committed in the state of Illinois, the cause of action, such as there was, grew out of a violation of the laws of that state. But neither of such concessions nor the fact, if it be a fact, that an action on the claimed liability could not be maintained in the courts of New York or those of Illinois, settles the question of whether it was proper for the courts of this state to entertain it.

It has long been settled here that such a provision as that in question is void as contrary to public policy. Hibbard v. Western U. T. Co., 33 Wis. 558, 14 Am. Rep. 775;Candee v. Western U. T. Co., 34 Wis. 471, 17 Am. Rep. 452. So we turn to this question: Can a contract which is so contrary to the public policy of this state as to be void if made here, be, nevertheless, judicially enforced here if valid in the state where it was made or breached?

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