Garrett v. W. Union Tel. Co.
| Decision Date | 03 June 1891 |
| Citation | 49 N.W. 88,83 Iowa 257 |
| Parties | GARRETT v. WESTERN UNION TEL. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Louisa county; W. R. LEWIS, Judge.
Action to recover damages for failure to transmit and deliver a telegraphic message. There was a trial by jury, and a verdict and judgment for the plaintiff for 60 cents. Plaintiff appeals.R. Caldwell and L. A. Riley, for appellant.
Arthur Springer, for appellee.
1. The evidence in the case shows that the defendant is a resident of Louisa county, and that at the time of the wrongs complained of by him, and for some time before that, he had been in the business of buying and shipping live-stock to the Chicago market. His operations were not confined to his immediate neighborhood, but he bought and shipped on the Rock Island Railroad, at points between Muscatine, Iowa, and Kansas City, Mo., and including those places. On the evening of the 28th day of June, 1888, he left his home in the country, and went to Columbus Junction, on the Chicago, Rock Island & Pacific Railway and took passage for Kansas City. Before leaving Columbus Junction he wrote and delivered to the operator of the defendant at that station a message, of which the following is a copy: When he delivered the message to the operator he gave 50 cents in payment for its transmission. Plaintiff arrived in Kansas City about 9 o'clock the next morning, and went to the stock-yards for the purpose of buying cattle. He went to the telegraph office in the stock exchange building several times, gave his name, and inquired for an answer to the message which he had sent the night before. He made these inquiries until 2 o'clock in the afternoon, and he then went into the stock-yards and bought 147 cattle. At the time of his purchase the price of cattle in Chicago was 50 cents per hundred less than it was on the day before the plaintiff delivered the message to the defendant's agent at Columbus Junction. It appears in evidence that Gregory, Cooley & Co., to whom the message was addressed, was the commission firm which received, handled, and sold the shipments of cattle made by the plaintiff, and had done so for several years; and the evidence shows that there was a business arrangement between the plaintiff and Gregory, Cooley & Co., by which they were to keep him advised by telegraph of the cattle market in Chicago. This arrangement was as follows: If the plaintiff asked Gregory, Cooley & Co. for the state of the market by telegraph, and there was no change from the last report, no answer to the telegram was received, and plaintiff acted upon the last report. If there was a change, then Gregory, Cooley & Co. answered the telegram of plaintiff, by giving him the advance or decline on the previous report. There is evidence tending to show that there was a report made by said commission firm to the plaintiff on the 27th day of June, 1888, and that plaintiff bought the cattle at Kansas City relying on that last report, and that, if his message had been sent, delivered, and answered, he would not have made the purchase. The evidence tends quite strongly to show that the message was not sent from ColumbusJunction, and that it was on a hook in the office, and that no attempt was made by the operator to transmit it to Gregory, Cooley & Co. It is true there is some conflict in the evidence on this question, but, as it was material to the rights of the parties, it was a proper question to be submitted to the jury. It is shown, without conflict, that the message was not at any time delivered to Gregory, Cooley & Co. There is evidence to the effect that the Chicago market for cattle was posted on the bulletin boards at the stock exchange in Kansas City, and that, if the plaintiff had consulted these reports, he would have been advised of the decline in the market before he made his purchase; and two of the members of the firm of Gregory, Cooley & Co. testified on the trial as witnesses that, if the plaintiff's message had been received by them, they would have immediately answered it, and advised plaintiff of the decline in the market.
At the close of the introduction of the evidence, the court instructed the jury that, under the pleadings and the evidence, there could be no recovery by the plaintiff except for the sum paid by him for sending the message, and interest thereon at 6 per cent. Under this instruction the jury returned a verdict for 60 cents. There is nothing in the record showing upon what ground the jury were instructed that the plaintiff could not recover damages. The message which the plaintiff delivered to the operator was what is known as a “night message.” It was written upon a blank furnished by the defendant. There was printed matter on the blank, and, among other words thereon, there was the following: “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 for 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 message, happening from any cause, beyond a sum equal to ten times the sum paid for transmission; and that no claim for damages shall be paid, unless presented in writing within thirty days after sending the message.” Whatever right the defendant may have, if any, to limit its liability, or provide against the negligence of its agents in the transmission of messages, there can be no question that the language above quoted cannot be held to excuse the defendant for a failure to send the message, or to make the attempt to do so. The exemption provided for by the printed blank...
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