Massengale v. Western Union Tel. Co.

• Decision Date: 07 April 1885
• Citation: 17 Mo.App. 257
• Parties: G. P. MASSENGALE ET AL., Appellants, v. WESTERN UNION TELEGRAPH COMPANY, Respondent.
• Court: Missouri Court of Appeals

17 Mo.App. 257

G. P. MASSENGALE ET AL., Appellants,

v.WESTERN UNION TELEGRAPH COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 7, 1885.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

C. M. NAPTON, for the appellants: A telegraph company is liable for an error in transmitting a dispatch, notwithstanding its blank contains a stipulation that it will not be liable unless the message is ordered repeated, unless it makes affirmative proof that the error arose from causes beyond its control.-- Tel. Co. v. Tyler, 74 Ill. 168; Tyler v. Tel. Co. 60 Ill. 421. A telegraph company cannot make for itself a statute of limitations contravening the general law, unless it be one that is reasonable, and whether it is reasonable will depend on the facts of each case.-- Russell v. Ins. Co., 55 Mo. 585; Rice v. R. R., 66 Mo. 314.

E. T. ALLEN, for the respondent: The limitation was reasonable, and will protect the company.-- Waun v. Telegraph Co., 37 Mo. 472; Ellis v. Telegraph Co., 13 Allen 226.

LEWIS, P. J., delivered the opinion of the court.

The plaintiffs' agent at Selma, Alabama, sent to them at St. Louis a telegraphic dispatch directing the shipment of certain corn and flour to Selma. The message, as delivered by the sender to the defendant corporation, contained the word “sight,” which, when it reached the plaintiffs, had become changed to the word “eight,” by an error in substituting the letter e for the letter s; which substitution, it was admitted, had occurred in the transmission from Selma to Montgomery, a relay station on the route. The error caused a damage to the plaintiffs in the sum of $87.25, for which they sue. The circuit court, sitting as a jury, found for the defendant.

The dispatch was sent as a night message on January 12, 1882, and was delivered to the plaintiffs on the morning of the 13th. It was written by the sender on a blank furnished by the telegraph company, at the top of which were printed certain stipulations so framed as to constitute a contract between the customer and the company. Among these was one to the effect that “no claim for damages shall be valid unless presented in writing within thirty days after sending the message.” The message was received on a printed blank containing the following: “This company transmits and delivers messages only on conditions limiting its liability, which have been assented to by the sender of the following message. * * * This message is an unrepeated message, and is delivered by request of the sender under the conditions named above.” The plaintiffs' first claim in writing on the defendant was made on February 17, more than thirty days after the sending of the message. The only declaration of law was given by the court of its own motion to the effect following:

“If it appears from the evidence that on the twelfth day of January, 1882, H. H. Stewart was acting as agent of plaintiffs at Selma, in the state of Alabama, and as such agent on that day delivered to defendant to be sent to plaintiffs at St. Louis, Mo., a telegram, which, with the blank upon which it was written, read as follows: (Here is copied the entire form of the message, including all the printed terms of the contract, the written telegram, and the signatures of the officers of the corporation, and of the sender, as it was delivered to the defendant at Selma.)

"And, it further appeared from the evidence, that defendant on or about the 13th day of January, 1882, delivered to plaintiffs at St. Louis, the message, which, with with the blank upon which it was written, read as follows: (Here is copied the message, with the printed additions, as it was delivered to the plaintiffs in St. Louis.) And that either the said Stewart, or plaintiffs, knew of, or, by the exercise of reasonable care might have known of, the conditions under which said telegram was accepted by defendant from plaintiffs' said agent, and transmitted as aforesaid, viz: the conditions printed at the top of the original message, and referred to in print at the top of the message delivered to plaintiff, the finding should be for defendant, unless it further appears that the claim for damages made in this case was presented in writing to the defendant within thirty days after the 12th day of January, 1882, or that such presentation was waived by defendant.”

The plaintiffs complain that the court did not give effect to the law of liability on the part of the telegraph company,...