Western Union Tel. Co. v. Stratemeier

• Decision Date: 29 December 1892
• Citation: 32 N.E. 871,6 Ind.App. 125
• Parties: WESTERN UNION TEL. CO. v. STRATEMEIER.
• Court: Indiana Appellate Court

6 Ind.App. 125

32 N.E. 871

WESTERN UNION TEL. CO.

v.STRATEMEIER.¹

Appellate Court of Indiana.

Dec. 29, 1892.

Appeal from circuit court, Ripley county; T. C. Batchellor, Judge.

Action by Henry Stratemeier against the Western Union Telegraph Company. Judgment for plaintiff. Defendant appeals. Reversed.

Butler, Snow & Butler, for appellant. Chas. K. Bagot, for appellee.

Crumpacker, C. J.

This action was brought by Stratemeier against the telegraph company to recover damages for negligently failing to transmit a telegraphic message delivered by the plaintiff at Batesville, Ind., and addressed to Henry Cordes, at Oakley, Ohio, requesting the latter to notify plaintiff's daughter of the death of her brother, which occurred on the morning of the day the message was presented for transmission. The second paragraph of answer alleged that the message was received for transmission by the defendant under a contract which contained the following stipulation: “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.” It was further alleged that it was necessary, in the course of its transmission, to send the message over the lines of the Baltimore & Ohio South western Railroad Company, and defendant faithfully sent and promptly delivered it to the agents of said railroad company, to be transmitted to its destination. The third paragraph of answer alleged that the message was received and transmitted by the defendant under a contract containing the following condition: “The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message,”-and that plaintiff did not present his claim for damages in writing within that time. The contract, consisting of the conditions printed at the head of the message blank in general use by the defendant, was set out with the answer. In the third paragraph of reply, which was addressed to the second paragraph of answer, plaintiff averred that he applied to the defendant's agent, at its office in Batesville, to send the message; that he was ignorant of the fact that it would be necessary to send it over the lines of any other company, and he inquired of the agent if the defendant had a line and receiving station at Oakley, and was informed that it had, and, relying upon such information as true, he delivered the message to the agent for transmission to that point, and paid him 50 cents, the amount he demanded for sending it. The seventh paragraph of reply was addressed to the third paragraph of answer, and admitted that plaintiff did not present his claim for damages in writing within 60 days after sending the message, as required by the contract, but alleged that he informed the defendant's agent at Batesville of his claim within 20 days after the message was sent, and such agent promised to and did notify the defendant's superintendent of such claim at once, and the “defendant, by its proper officers, corresponded with plaintiff, and communicated with him concerning his” claim for damages as set out in the complaint, and offered him money in settlement thereof, within 60 days after sending the message, and did not at any time request him to present the claim in writing. There was a special verdict fixing plaintiff's damages at $400, upon which judgment was rendered in his favor.

The first question for decision is based upon the action of the court in overruling the demurrer to the third paragraph of reply. In the absence of any agreement upon the subject, a telegraph company which receives a message for transmission is only required to exercise good faith and diligence in transmitting the message over its own lines, and promptitude in delivering it to connecting lines, when necessary in the course of its transmission; but it may undertake unqualifiedly to send the message to its destination, in which event it will be answerable, not only for the delinquencies of its own agents, but also of the agents of connecting companies, whose lines may be employed in transmitting the message. But in the present case the relation of appellant in respect to connecting lines is defined by contract to be that of the agent of the sender of the message, without liability. There is no doubt of the validity of this provision of the contract. There is no primary liability resting upon the receiving company for the negligence of other lines, and it may stipulate the terms upon which it will deliver a message to such other lines for transmission. Squire v. Telegraph Co., 98 Mass. 232; Telegraph Co. v. Munford, 87 Tenn. 190, 10 S. W. Rep. 318;Telegraph Co. v. Way, 83 Ala. 542, 4 South. Rep. 844; Baxter v. Telegraph Co., 37 U. C. Q. B. 470. Under the stipulation in question, appellant was required to use care and attention in sending the message over its own lines, and promptness in delivering it to a competent connecting line for further transmission, if the services of such connecting line were necessary. If this were done, appellant fully discharged its obligation under the contract. The fact that appellee did not know it would be necessary to send the message over another line would not, of itself, affect the rights of the parties under the contract, since it must be presumed that he assented to the contract, and the provision in reference to connecting lines was sufficient to charge him with notice. In the case of Telegraph Co. v. Carew, 15 Mich. 525, the court said, respecting a similar provision: “The conditions on the back of the message, it is true, did not state where the line of this comany terminated, nor what other line the message must pass over. But the reference to the terms of sending over other lines was sufficient, if the plaintiff deemed it of any importance to him, to put him upon inquiry, when the fact would at once have been ascertained.” It appears, however, from the reply under consideration, that appellee did regard it of sufficient importance to investigate, and was assured that the message would be sent to its destination, and delivered to the sendee over appellant's lines and by its agents; and he was induced by this assurance to intrust the message to appellant for transmission, and to pay the fee exacted for that service. He had the undoubted right to rely upon the information given him by the agent; and, having been induced to act thereon, appellant will be estopped to assert that it did not in fact have a line to and an office at Oakley, for it is a familiar doctrine that one who, by his assurances, induced another to act upon the faith that a certain fact exists, will not be permitted to gainsay the existence of such fact. It follows that no error occurred in the ruling upon the demurrer.

It is also maintained that the seventh paragraph of reply is demurrable. The condition in the contract requiring the claim for damages to be presented in writing within 60 days is reasonable and valid, and is a condition precedent to a...