W. Union Tel. Co. v. Neill

• Decision Date: 21 June 1881
• Docket Number: Case No. 4131.
• Parties: THE WESTERN UNION TELEGRAPH CO. v. ANDREW NEILL.
• Court: Texas Supreme Court

57 Tex. 283

THE WESTERN UNION TELEGRAPH CO.

v.ANDREW NEILL.

Case No. 4131.

Supreme Court of Texas.

Jun. 21, 1881.

APPEAL from Travis. Tried below before the Hon. E. B. Turner.

Suit brought in the district court of Travis county by appellee, Andrew Neill, against appellant, the Western Union Telegraph Company, for $5,000 damages, alleged to have been caused by the negligence of defendant in the transmission of a telegraphic dispatch.

The petition alleged that on the 8th day of May, 1878, plaintiff owned a large amount of real estate in and near Seguin, Texas; that he had there an agent, A. J. Fry, authorized to receive and transmit to plaintiff offers from purchasers for such real estate, or any part thereof; that plaintiff also had at Seguin an attorney in fact, W. E. Goodrich, to execute and deliver deeds for such of plaintiff's real estate as might be sold by plaintiff through his agent, Fry, after such sales should be approved by plaintiff; that on said day defendant was in the business of transmitting for hire, and offered to transmit correctly, telegraphic messages from Seguin to Austin, where plaintiff lived. That on that day plaintiff's agent, Fry, delivered to defendant at Seguin, for transmission to plaintiff, the message found in the opinion, and assured plaintiff that it was a correct copy. That being deceived by the false copy so delivered to him, and not knowing that the same was not a true copy, plaintiff was induced to telegraph to said Fry to close sale as reported. That plaintiff's attorney in fact, Goodrich, believing that plaintiff was informed of the terms of sale, and had assented thereto, conveyed by deed to N. A. Johnson farming lots Nos. 4, 5 and 6 (about one hundred and fifty acres), and worth $2,500; and also what was known as plaintiff's home place, in Seguin (about eight acres), with improvements worth $5,000. That plaintiff understood from the message delivered to him that Fry had sold only blocks 4, 5 and 6 for the sum of $2,500, when in fact he had sold all the property, worth $7,500, for $2,500, and plaintiff was induced by the false telegram to accept the sale, whereby he was damaged $5,000.

The evidence showed that when appellee received the erroneous message he went to appellant's office in Austin and showed the message received to appellant's agent, and informed that agent that he did not understand the word “have” in the message, and desired to know if the message was correct. Appellant's agent replied, “That is just the way it struck me when I was receiving it, and therefore I broke on the word, and it was repeated to me ‘have.’ 'DD' Appellee also stated that he had at that time gone to appellant's agent to see if there was any mistake in the message delivered to him, and to have it repeated unless assured that the message was correct as delivered to him. Appellee at that time asked the agent of appellant whether he was certain that the message with the word “have” was just as received by the appellant from the sender. To which the agent of appellant at Austin replied that it was just as received; that he, the agent and operator at Austin, had it repeated as to the word “have,” and it was repeated “have.” At that time appellee was of the impression and believed that appellant's wires between Seguin and Austin were continuous, and did not know that the message had to be sent from Seguin to Houston and there repeated to Austin; and did not know that fact till some weeks afterwards. But for this statement of appellant's Austin agent appellee would have had the message repeated from the Seguin office before acting on it. After this conversation between appellee and the agent of appellant at Austin, appellee placed a construction on the message as delivered to him. Appellee construed the message in the light of the relations between him and the sender of the message and the surrounding and connected circumstances. He acted on the message delivered to him under these circumstances. The result was injury to the extent of the value of appellee's “home place” in Seguin, worth from $1,750 to $2,500, or more.

As a fact, the only wires of appellant for the transmission of messages from Seguin to Austin run from Seguin to Houston, and at Houston all messages between Seguin and Austin had to be repeated, and no message passed directly from Seguin to Austin. The appellant's agent at Austin knew at the time appellee went to have the message repeated that appellant's line of wires were not continuous from Seguin to Austin, but that messages between those points had to go by way of Houston, and at Houston had to be repeated, but he did not state that fact to appellee. Judgment for plaintiff for $1,750.

Walton, Green & Hill, for appellant.

Sheeks & Sneed, for appellee.

I. The pleadings of plaintiff do not show a case of prima facie negligence on his part, and therefore it was not necessary for him to make averments to avoid the effect of such negligence. 46 Tex., and cases there cited.

II. The message which appellant undertook to transmit correctly was itself sufficient to put appellant on notice of the importance of its correct transmission. By calling for an answer, it did impart that a sale of property hinged on the answer, and made the company liable for damages resulting from an incorrect copy of it. In addition, the character of the answer returned by appellee by message sent by appellant fully notified appellant, before final consummation of the sale, that the approval of appellee was requisite before the transaction could be closed by Fry, the sender of the message. Baldwin v. U. Tel. Co., 6 Am. Rep., 165; Parks v. Alta Cal. Tel. Co., 13 Cal. 422 (9 Am. Rep., 153); The N. Y. and Washington Printing Telegraph Co. v. Drybourg, 35 Pa. St., 298 (9 Am. Rep., 150); W. U. Tel. Co. v. Buchanan, 35 Ind., 430.

III. First, there is no such contract limiting appellant's liability as that claimed by appellant; second, if there be such a contract, the same is against public policy and void; third, if there was such a contract as clamed by appellant, and if such contract is not contrary to public policy and void, then this case is taken out of the operation of such contract by the acts and declarations of appellant's agent at Austin after the delivery of the erroneous message, and before it was acted on by appellee, which acts and declarations prevented appellee from having the message repeated, and thus discovering the error before acting on it, and which acts and declarations induced appellee to act on the erroneous message as being a true and correct copy of the message delivered by Fry for transmission to the appellant's agent at Seguin. W. U. T. Co. v. Weiting, decided at Galveston by the Court of Appeals, March 26, 1881.

BONNER, ASSOCIATE JUSTICE.

The controversy in this case arises from an error in the transmission of a message over the line of the appellant, the Western Union Telegraph Company, sent to the appellee, Andrew Neill, by his agent, A. J. Fry??

The message was one known as a half-rate, or night message, being sent at half the rate charged for a day message.

The printed form accompanying it, and underneath which it was written, together with the message itself, the latter being in italics, is as follows:

“THE WESTERN UNION TELEGRAPH COMPANY.

HALF-RATE MESSAGE.

The business of telegraphing is liable to errors and delays, arising from causes which cannot at all times be guarded against, including sometimes negligence of servants and agents whom it is necessary to employ. Most errors and delays may be prevented by repetition, for which, during the day, half price extra is charged in addition to the full tariff rates.

The Western Union Telegraph Company will receive messages for transmission between stations in the United States east of the Mississippi river to be sent without repetition during the night, at one-half the usual rates, on condition that the sender will agree that he will not claim damages from it for errors or delays, or for nondelivery of such messages, happening from any cause other than the acts of its corporate officers, beyond a sum equal to ten times the amount paid for transmission; and that no claim for damages shall be valid unless presented in writing within twenty days from sending the message.

The company will be responsible to the limit of its lines only, for messages destined beyond, but will act as the sender's agent to deliver the message to connecting companies or carriers, if desired, without charge and without liability.

WILLIAM ORTON, President.

GEO. H. MUMFORD, Secretary.

Seguin May. 8. 1878.

+----------------------------------------------+
                ¦Send the following half-rate message subject¦)¦
                +--------------------------------------------+-¦
                ¦to the above terms, which are agreed to:    ¦)¦
                +----------------------------------------------+
                

To Col. A. Neill

Austin.

Sold Block 4, 5 & 6 & home place for Two Thousand five hundred $2000. down five hundred nine months. Answer

A. J. FRY.”

The message as delivered to appellee Neill, inclusive of print and manuscript (shown in italics), was as follows:

“HALF-RATE MESSAGES.

THE WESTERN UNION TELEGRAPH COMPANY require that all messages received for transmission shall be written on the blanks of the company, under and subject to the conditions thereon, which conditions have been agreed to by the sender of the following HALF-RATE MESSAGE.

+----------------------------------------------+
                ¦GEO. H. MUMFORD, Sec'y.¦WILLIAM ORTON, Pres't.¦
                +----------------------------------------------+
                

Dated Seguin x 8 1878

Received at Austin May 9 1878

To Col A. Neill

Sold block four, five & six and have place for two thousand five hundred Two Thousand down five hundred nine months answer

A. J. FRY.”

The error occurred in substituting the word “have” for the word “home.”

It is not contended but that the agent, Fry, knew of the above rules and regulations of the company in regard to sending their messages, and the...