Western Union Telegraph Company v. Beals

• Decision Date: 20 October 1898
• Docket Number: 10163
• Citation: 76 N.W. 903,56 Neb. 415
• Parties: WESTERN UNION TELEGRAPH COMPANY v. ELIAS S. BEALS ET AL
• Court: Nebraska Supreme Court

76 N.W. 903

56 Neb. 415

WESTERN UNION TELEGRAPH COMPANY v. ELIAS S. BEALS ET AL

No. 10163

Supreme Court of Nebraska

October 20, 1898

ERROR from the district court of Brown county. Tried below before WESTOVER, J. Affirmed.

AFFIRMED.

W. W Morsman, for plaintiff in error.

Macfarland & Altschuler, contra.

OPINION

RAGAN C.

November 28, 1892, Beals, Torrey & Co., a copartnership doing business in Milwaukee, Wisconsin, by their attorneys Winkler and others, delivered to the Western Union Telegraph Company a telegram for transmission and delivery to Alexander Altschuler, also attorney for Beals, Torrey & Co., at Ainsworth, Nebraska. The telegram, together with the printed matter upon the blank upon which it was written, was as follows:

"Send the following message subject to the terms on the back hereof which are hereby agreed to.

"MILWAUKEE, WIS., NOV. 28, '92.

"To Alexander Altschuler, Ainsworth, Neb.: Attach property of Sargent & Co. favor of Elias S. Beals, Alexis Torrey, E. Frank Beals, and James L. Beals, copartners doing business here as Beals, Torrey & Co. Claim for goods sold and delivered seven hundred ninety dollars. Claim not yet due. Ainsworth bank will furnish bond. Statement by mail.

"WINKLER, FLANDERS, SMITH, BOTTUM & VILAS.

"Read the notice and agreement on back."

This notice and agreement was as follows:

"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, 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 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 a message 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.

"(Signed)

NORVIN GREEN, President.

"THOS. T. ECKERT, Gen. Mgr."

The telegram delivered to Altschuler at Ainsworth read: "Attach property, etc., even hundred ninety dollars." In pursuance of the telegram Altschuler caused the property of Sargent & Co. to be attached in favor of Beals, Torrey & Co. for $ 190. In the district court of Brown county Beals, Torrey & Co. brought this suit against the telegraph company to recover the remainder of their claim against Sargent & Co. on the ground that the mistake of the telegraph company in transmitting the dispatch caused the loss of said debt. Beals, Torrey & Co. had judgment, to review which the telegraph company has filed here a petition in error.

The first argument of the plaintiff in error is that by the terms of the contract under which the message was transmitted Beals, Torrey & Co.'s right of recovery was limited to the sum paid by them for transmitting the message. In support of this contention counsel has cited us to a long array of cases ^[*] which hold that a telegraph company has a right to make reasonable rules and regulations relative to sending messages and thereby limit its liability for errors not occasioned by its negligence, and that the contract exempting the company from liability for damage for mistakes in transmitting an unrepeated message is a reasonable and enforceable one. Among the cases cited is Becker v. Western Union Telegraph Co., 11 Neb. 87, 7 N.W. 868, which sustains the argument of the plaintiff in error. This case was decided at the January, 1881, term of this court. The legislature which convened in this state in January, 1883, enacted what is now chapter 89a of Compiled Statutes, section 12 of which chapter provides: "Any telegraph company engaged in the transmission of telegraphic dispatches is hereby declared to be liable for the non-delivery of dispatches entrusted to its care, and for all mistakes in transmitting messages made by any person in its employ, and for all damages resulting from a failure to perform any other duty required by law, and any such telegraph company shall not be exempted from any such liability by reason of any clause, condition, or agreement contained in its printed blanks." After this statute went into force the question was again presented to this court whether a telegraph company which had made a mistake in transmitting a message was protected by the contract printed on the blank that it should not be liable for mistakes or delays in the transmission or delivery or nondelivery of any unrepeated message beyond the amount received for sending same; and it was ruled that the company, by reason of the statute just quoted, was liable for all damages sustained by its failure to correctly transmit and deliver the message received by it, notwithstanding the clause, condition, or agreement on its printed blanks. (Kemp v. Western Union Telegraph Co., 28 Neb. 661, 44 N.W. 1064.) To the same effect: Pacific Telegraph Co., v. Underwood, 37 Neb. 315, 55 N.W. 1057, and Western Union Telegraph Co. v. Kemp, 44 Neb. 194, 62 N.W. 451.) We think it clear beyond all controversy that the statute just quoted was enacted by the legislature for the express purpose of obviating the effect of the decision of this court in Becker v. Western Union Telegraph Co., 11 Neb. 87, 7 N.W. 868. The cases cited by counsel for the plaintiff in error, because of the provision of our own statute, cannot be regarded as authority by us in support of the telegraph company's contention. Not one of these cases, we think, was influenced by such a statute as the Nebraska statute, nor decided in a jurisdiction in which existed such a statute. It seems to be the contention of counsel for the telegraph company that the contract printed on the telegraphic blank does not attempt and was not intended to exempt the telegraph company from liability for the negligence of itself or its employes. We quote the argument of the eminent counsel in his brief:

"The primary and important question is, is the contract under which the message was transmitted, providing, inter alia, that the company 'shall not be liable for mistakes * * * in the transmission * * * of any unrepeated message beyond the amount received for sending the same,' valid? It is the contention of the plaintiff in error that this provision is valid; that it does not violate any principle of the common law; that it is not in conflict with any statute of the state of Wisconsin or of the state of Nebraska; that the object and effect of the contract * * * is not to exempt the company from responsibility for negligence, * * * but to offer to the public a reasonable and practicable method of preventing errors and their injurious consequences, to secure a due proportion between charges and risk, and to protect the company against claims which, at the time of entering into the contract, cannot be known or foreseen, and for which, therefore, the company receives no compensation. * * * It may be fully admitted at the outset that this company cannot avail itself of any stipulation, the design of which is to exempt it from the consequences of its own negligence, or that of its servants. The question is not whether the company can stipulate for exemption from liability for the negligence of itself or of its employes. Nor is the question whether it can so stipulate when the negligence is only ordinary as distinguished from gross. The proposition is that the contract does not provide for exemption at all, but provides the means of avoiding errors and due...