The Western Union Tel. Co. v. Blanchard

• Decision Date: 28 February 1882
• Citation: 68 Ga. 299
• Court: Georgia Supreme Court
• Parties: The Western Union Telegraph Company. vs. Blanchard, Williams & Company.

68 Ga. 299

The Western Union Telegraph Company. vs. Blanchard, Williams & Company.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

Telegraph Companies. Damages. Negligence. Contracts. Cotton Futures. Before Judge WILLIS. Muscogee Superior Court. November Term, 1881.

To the facts reported in the decision, it is only necessarily to add that the defendant moved for a new trial on the following, among other grounds:

(1.) Because the court refused to charge the jury thattelegraph companies may limit the measure of their liability to damages by reasonable rules and regulations brought home to the knowledge of, and attended to, by those with whom they deal, and that a rule of a telegraph company requiring important messages to be repeated in order to guard against mistakes in transmitting them, and charging one-half the usual rate for such repetition, and that the company will not be responsible for mistakes in the transmission of un-repeated messages is reasonable, and such as the company may adopt; and it will not be liable for an error in an un-repeated message except for fraud or gross negligence.

(2.) Because the court refused to charge the jury that the rule in regard to insuring important messages by contract in writing, as contained in the said printed blank of said defendant, is also a reasonable one, and in the absence of such insurance the company is only liable for fraud or gross negligence.

(3.) Because the court refused to charge the jury that if the testimony shows that the message which plaintiffs allege was delivered by them to defendant on the 19th day of May, 1879, for transmission to Waldron & Tainter_> New York, was written by said plaintiffs, or any one of them, or any member of their firm, on a printed blank of defendant in the words and figures following:

"THE WESTERN UNION TELEGRAPH COMPANY.

All messages taken by this company subject to the following terms: To guard against mistakes or delays, the sender of the 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 the company that said company shall not be liable for mistakes or delays in the transmission or delivery or for non-delivery of any un-repeated message whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery or for non-delivery of any repeated message beyond fifty times the sum received for sending the same, unless specially insured; nor in any case for delay arising from unavoidable interruptionin the working of its lines, or for errors in cipher or obscure messages. And this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination. Correctness in the transmission of messages to any point on the lines of this company can be insured by contract in writing, stating agreed amount of risk, and payment of premium thereon at the following rates, in addition to the usual charge for repeated messages, viz: one per cent, for any distance not exceeding 1, 000 miles, and two per cent, for any greater distance. No employe of the company is authorized to vary the foregoing.

No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices, and if a message is sent to such office by one of the company's messengers, he acts for that purpose as the agent of the sender. Messages will be delivered free within the established free delivery limits of the terminal office; for delivery at a greater distance a special charge will be made to cover the cost of such delivery. The company will not be liable for damages in any case where the claim is not presented i.i writing within sixty days after sending the message.

A. R. Brown, Secretary Norvin Green, President."

" Columbus, Ga., May 19th, 1879.

Send the following message, subject to the above terms, which are agreed to.

To Waldron & Tainter, 07 Pearl si., New York.

Cover two hundred September, one hundred August.

(Signed) Blanchard, Williams & Co."

[ Paid.]

Read the notice and agreement at the top, "

and that said plaintiffs assented to said rules and regulations, then the said rules and regulations became and were the agreement and contract between the said parties, and said plaintiffs can not recover, unless they show that they had said message repeated or requested to have it repeated, and paid or offered to pay for the same, any greater sum than the tolls paid by them with the legal interest thereon.

(4.) Because the court refused to charge the jury as follows: That if the jury shall believe from the testimony that the message sent by plaintiffs in this case, or delivered to defendant to be sent, was an obscure or unintelligible message, and that its meaning was unknown todefendant or its agents, and that there was. no notice or information of any fact given to defendant or contained in the message itself indicating its importance, or that special damages would result from any neglect in its transmission, then the measure of damages would be, in case of recovery, the tolls paid by plaintiffs for its transmission, and the jury should so find.

(5.) Because the court refused to charge the jury as follows: Telegraph companies are not liable for damage in any case where the claim for the same is not presented in writing within sixty days after the sending of the message, when such stipulation or condition is embodied in the printed terms of the blank upon which the message is sent, to some agent of the company authorized to exercise any of its corporate powers in relation to the subject matter of the claim. And if the evidence does not show that plaintiffs presented their claim in writing within such time to such agent of the defendant, then plaintiffs cannot recover in this case.

Jno. S. Bigby, for plaintiff in error.

Peabody & Bkannon, for defendants.

Speer, Justice.

Blanchard, Williams & Co. sued the Western Union Telegraph Company in an action of assumpsit for the sum of $189.71 as damages claimed to have been sustained in consequence of an error in the transmission of a day message from the city of Columbus to the city of New York.

The declaration alleges that on the 19th of May, 1879, the plaintiff below caused to be delivered to the defendant a message in writing as follows:

" Waldron & Tainter, New York.

Cover two hundred September, one hundred August.

(Signed) Blanchard, Williams & Co., "to be sent and delivered to Waldron & Tainter, New York, and the defendant for a certain consideration agreed to do it. That the company did not transmit the message as received, but changed it so that when delivered to Waldron & Tainter, in New York, it read as follows:

" To Waldron & Tainter, New York.

Cover two hundred September, two hundred August.

(Signed) Blanchard, Williams & Co."

The declaration alleged that Waldron & Tainter were at that time factors and commission merchants in New York, engaged in buying and selling cotton, and then held for plaintiffs 100 bales of cotton, to be delivered to their order in August, 1879, in New York, and that plaintiffs, desiring to sell said 100 bales, delivered said message to defendant, tc be carried to New York to be delivered to said Waldron & Tainter. Plaintiffs aver that the message was an order from them to Waldron & Tainter to sell said 100 bales of cotton on their account, to be delivered in New York in August, 1S79, and would have been so understood if it had been delivered to them as written and delivered to the telegraph company.

That the message, as sent by defendant, was an order to sell 200 bales, to be delivered in New York in the month of August, and was so understood by Waldron & Tainter; and in consequence of the change of the message they sold 2co bales of cotton on account of plaintiffs, to be delivered in New York in the month of August, instead of 100 bales as directed by the message delivered by plaintiffs. By reason of this change Blanchard, Williams & Co. were compelled to buy 100 bales to comply with the sale made by Waldron & Tainter.

That on the 20th of May, 1879, they advised Waldron & Tainter of the change in the message, and they on the 21st of May bought 100 bales of cotton to comply with said sale made; but in consequence of the fact that cotton had advanced, a loss was incurred by plaintiffs of $15967, and they were also put to the expense of $25.00 in selling and buying said 100 bales, and $5.00 in sending messages by telegraph to New York in connection therewith.

To this suit defendants filed the pleas,

(1.) Of the general issue.

(2.) That the plaintiffs at the time of sending said message made no request to have said message repeated, did not offer or pay to have said message repeated, but paid for it as a single message under the rules and regulations of the company, which were known to plaintiffs and assented to by them.

(3.) That the message of plaintiffs was an obscure or cipher message, and plaintiffs did not at the time of its transmission inform the defendant of the value or importance of the message. That the plaintiffs well knew of the rules and regulations of the company as to sending obscure or cipher messages, and the same was sent under said rules, etc., and defendant, under said rules, was not liable, and they were sent at risk of plaintiffs.

(4.) That plaintiffs did not communicate to defendants at the time of the transmission of said message, the special circumstances under which it was sent, nor were they known to defendant—that the message was of...