Thompson v. W. Union Tel. Co.

• Decision Date: 01 December 1885
• Citation: 25 N.W. 789,64 Wis. 531
• Parties: THOMPSON AND ANOTHER v. WESTERN UNION TEL. CO.
• Court: Wisconsin Supreme Court

64 Wis. 531

25 N.W. 789

THOMPSON AND ANOTHER

v.WESTERN UNION TEL. CO.¹

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Grant county.Wilson & Provis, for respondents, William Thompson and another.

Brooks & Dutcher, for appellant, Western Union Tel. Co.

TAYLOR, J.

The respondents brought their action in justice's court against the appellant company to recover damag of the company for negligently delaying the transmission and delivery of the following telegram, delivered by the plaintiffs to the agent of the appellant at Boscobel, in this state, viz.:

“BOSCOBEL, April 26, 1884.

To E. G. Thompson, Fennimore, Wis. Send bay horse to-day. Mock loads to-night.

+----------------------------+
                ¦[Signed]¦WILLIAM THOMPSON.” ¦
                +----------------------------+
                

This message was delivered to the agent of the company at Boscobel at 10 A. M., on the twenty-sixth of April, 1884, and was not delivered at Fennimore until about 10 A. M., on the twenty-eighth of April, 1884. The distance between Boscobel and Fennimore is about 12 miles. The company has a telegraph line between the two places. To send the message over the lines it would go first to Milwaukee and from there to Fennimore. The agent of the company at Fennimore says he received the message at 10 o'clock A. M., on the twenty-eighth, and delivered it to the person to whom it was sent in three minutes after it was received. The usual time for sending a dispatch from Milwaukee to Fennimore is about 20 minutes. It was also stated by the operator at Boscobel that he sent the message to Milwaukee as soon as it was received by him from the plaintiff. The delay was between Milwaukee and Fennimore. The twenty-sixth of April, 1884, was Saturday.

The respondents recovered in justice's court, and the company appealed to the circuit court. A trial was had in that court, and the respondents recovered a verdict for $25 damages, for which they had judgment, and the company appeals to this court. Upon the argument in this court, the counsel for the appellant insists that upon the proofs the plaintiff was entitled to recover only the money paid for sending the message, and, as that had been tendered after the action was commenced, together with the costs of the action up to the time of the tender, the judgment should have been in favor of the appellant. This proposition, it is insisted, should be sustained upon two grounds: (1) Because such was the contract between the parties at the time the message was sent; and, (2) upon the facts proved and under the complaint, such is the extent of the damages the plaintiff is entitled to recover against the appellant in this action. The telegram was written upon one of the blanks of the company, and the plaintiff admits that he knew the contents of said blank when he sent the message. The following is printed on such blanks, viz.: “All messages taken by this company are subject to the following terms: 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 the regular rate is charged in addition. 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 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 delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure message. 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 line of this company can be insured by contract in writing, stating agreed amount of risk, and payment of premiums thereon at the following rates, in addition to the usual charges 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.”

It is not alleged in the complaint, nor proved upon the trial, that any reason was given by the plaintiff to the agent at Boscobel for sending the message, except what appears on the face of it, but he testifies that he told the agent to “hurry it up.” It is insisted that, according to the terms of the contract signed by the plaintiff when he sent his message, the company is relieved from all liability to respond in damages to the plaintiff for any neglect or delay in forwarding or delivering the message beyond the repayment of the money paid to the company for sending the same. Whatever may be the decisions of other courts in other states upon this question, we think the decisions of this court settle the question against the appellant. Candee v. W. U.Tel. Co., 34 Wis. 471;Hibbard v. W. U. Tel. Co., 33 Wis. 558, 568. In these cases the telegrams were sent as night dispatches, upon printed blanks of the company by the terms of which such messages were sent at half the usual rates for day messages, “on condition that the company should not be liable for errors or delay in the transmission or delivery or non-delivery of such messages, from whatever cause occurring, and should only be bound in such cases to return the amount paid by the sender.” In both cases it was held that the contract was void as against public policy so far as it undertakes to protect the company from liability for the negligence or fraud of its agents. In the last case cited the present chief justice says, quoting from the opinion in Baldwin v. U. S. Tel. Co., 45 N. Y. 751: “While telegraph companies are not insurers, and do not guarantee the delivery of all messages with entire accuracy and against all contingencies, they do undertake for ordinary care and vigilance in the performance of their duties, and to answer for the neglect and omission of duty of their servants and agents;” “and this degree of liability the law imposes upon them, as well in the transmission and delivery of a night as of a day dispatch.” Chief Justice DIXON, in the Candee Case, says: “Either the company enters into a contract with him, (the sender of the message,) and takes upon itself the burden of some sort of legal obligation to send the message, or it does not. It would be manifestly against reason, and what all must assume to be the intention of the parties, to say that no contract whatever is made between them, and nobody, not even the officers or representatives of the company, asserts such a doctrine. It would seem utterly absurd to assert it. Holding itself out as ready and willing and able to perform the service for whosoever comes and pays the consideration itself fixed and declared to be sufficient, and actually receiving such...