Gulf, C. & S. F. R. Co. v. Miller

• Decision Date: 14 February 1888
• Citation: Gulf, C. & S. F. R. Co. v. Miller, 7 S.W. 653, 69 Tex. 739 (Tex. 1888)
• Parties: GULF, C. & S. F. R. CO. v. MILLER.
• Court: Texas Supreme Court

Page 653

7 S.W. 653

GULF, C. & S. F. R. CO. v. MILLER.

Supreme Court of Texas.

February 14, 1888.

Commissioners' decision. Appeal from district court, Washington county; J. B. McFARLAND, Judge.

Action by plaintiff, L. J. Miller, against the Gulf, Colorado & Santa Fe Railway Company, to recover damages for failure to deliver a telegram sent to plaintiff by his wife, Lena Miller. Upon the verdict of a jury, judgment was rendered for plaintiff for $1,000. A motion for a new trial was denied, and defendant appeals.

The brief of appellant contains no assignments of error, but is made upon the following propositions: (1) The defendant had the right to limit its liability by contract, and the court erred in its instruction to the jury that the fact that the sender did not pay to have the message repeated constituted no defense to an action for the failure to deliver it to the party to whom it was addressed, and in refusing the charge asked by defendant as to the effect of said obligation. (2) The finding of the jury was against the weight of the evidence. (3) The court erred in refusing to instruct the jury, as requested by the defendant, as to what care and diligence would exonerate the defendant from culpable negligence in the delivery of the message. (4) It was error in the court to admit in evidence, over the objection of the defendant, the business card, envelope, and letter-head used by the plaintiff, L. J. Miller, when he was in business in Brenham, several years before the cause of action arose. (5) It was improper for the court to require of the jury a finding as to a degree of negligence without defining the same to them. Said charge was also suggestive to the jury of conduct on the part of the defendant which would form a measure of negligence for which they might find actual damages, when such conduct would only be the basis for exemplary damages. The charge of the court complained of under the first proposition is given in the opinion. The special charge requested and refused, as alleged in third proposition, is as follows: "That whether or not the failure to deliver a message is the result of culpable negligence on the part of the company or its agents is a question of fact to be determined by the jury from the attending facts and circumstances; and if you believe from the evidence that the defendant, through its messenger at Brenham, or otherwise, exercised such care and diligence as would reasonably be sufficient to find the plaintiff and deliver the message to him, then you will find for the defendant, although you should not believe that said telegrams were written on the blanks of the company." The charge complained of under the fifth proposition is as follows: "If you find that the defendant, its agents and employes, were guilty of a wanton disregard of plaintiff's rights, or of gross negligence in the performance of their duty in connection with the delivery of the telegrams, you may take that fact into consideration in rendering your verdict, and allow such damages as may seem to you to be right and proper, under all the facts and circumstances of the case, and, if you find there was gross negligence, you will so state in your verdict."

Garrett, Searcy & Bryan, for appellant. Bassett, Muse & Muse, for appellee.

ACKER, J.

Appellee brought this suit to recover damages for the failure to deliver a telegraph message sent by his wife from Sealy, Texas, to him at Brenham, informing him of the serious illness of their child, and requesting his presence at Sealy. The message was delivered to appellant's agent at Sealy about 2:30 P. M., and the charge for transmitting and delivering it was prepaid. The distance from Sealy to Brenham is about 30 miles. The message was received at Brenham a few minutes after it was delivered to appellant's agent at Sealy. The message was not repeated. Appellee was at his home in Brenham all afternoon of the day the message was sent, but it was not delivered to him until in the afternoon of the next day, after the child was dead, when he called for it at appellant's office in Brenham. The message was written on a blank, furnished by appellant for that purpose, at the top of which, and preceding the message, there was printed matter containing the following stipulation: "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 the negligence of its servants or otherwise, beyond the amount received for sending the same." In regard to this contract, the court charged the jury: "Under such a contract, the defendant, its agents and employes, would be bound to use such care and diligence as were reasonably adequate to a faithful discharge of the obligation assumed; and the failure to deliver the message with reasonable diligence, that is, with such care and diligence as a prudent man would exercise in a matter of equal importance to himself, if that fact has been shown, makes a prima facie case of negligence, which would cast on the defendant the burden of proof to justify, excuse, or mitigate such an apparent breach of duty; and the fact that the sender did not pay to have the message repeated constitutes no defense to an action for the failure to deliver it to the party to whom it was addressed." This charge is complained of as erroneous, because, as contended here, "the appellant had the right to limit its liability by contract, and the court erred in instructing the jury that the fact that the sender did not pay to have the message repeated constitutes no defense to an action for the failure to deliver it to the party to whom it was addressed." Treating the conditions or stipulations, printed upon the blanks furnished by appellant, and upon which it requires all messages to be written, as a contract, we are to determine whether the stipulation here invoked is reasonable and binding, to the extent of affording protection to appellant against damages resulting from the negligence of its agents and employes in failing to deliver the message. If the plaintiff in this suit were seeking to recover damages for error committed in transmitting the message, we would be relieved of all difficulty upon this question; for while the authorities are numerous, very respectable, and well supported by sound reason, that hold such stipulations void, this court has held that, where the action is brought to recover damages for error in transmitting, the failure of the sender to have the message repeated, exonerates the company from liability for damages, unless the injury was caused by the misconduct, fraud, or want of due care on the part of the company, its servants or agents. Telegraph Co. v. Neill, 57 Tex. 283; Womack v. Telegraph Co., 58 Tex. 176.

But we can conceive no reason in support of the requirement that the message shall be repeated where the injury resulted from a failure to deliver, and we therefore hold, with the great weight of authority, that the condition or stipulation here insisted upon, as an exemption of the company from liability for damages resulting from a failure to deliver, is not reasonable nor valid nor binding. Hibbard v. Telegraph Co., 33 Wis. 564; Telegraph Co. v. Graham, 1 Colo. 182; Telegraph Co. v. Fenton, 52 Ind. 5, 6; True v. Telegraph Co., 60 Me. 18; Birney v. Telegraph Co., 18 Md. 341; Bartlett v. Telegraph Co., 62 Me. 217; Telegraph Co. v. Blanchard, 68 Ga. 309; Berry v. Cooper, 28 Ga. 543; Telegraph Co. v. Fontaine, 58 Ga. 433; Clarke v. Meixsell, 29 Md. 222; Sweatland v. Telegraph Co., 27 Iowa,...