Womack v. W. U. Tel. Co.
| Decision Date | 15 December 1882 |
| Docket Number | Case No. 1275. |
| Parties | JOHN F. WOMACK v. THE W. U. TEL. CO. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Harrison. Tried below before the Hon. A. J. Booty.
The opinion states the case.
Geo. L. Hill, for appellant.
I. The printed conditions upon the blank upon which the message was written are not binding upon the sender unless actual knowledge of the contents thereof are brought home to the sender. Railroad v. Harris, 12 Wall., 85; Shearman & Redfield on Neg., secs. 565-571; Telegraph Co. v. Blanchard, Williams & Co., by Supreme Court of Georgia, American Law Mag., p. 74; Telegraph Co. v. Weiting, Texas Court of Appeals; Telegraph Co. v. Neill, Texas Law Jour., October 20, 1881, p. 105; So Relle v. Telegraph Co., 55 Tex., 308.
II. The court is not permitted to charge upon the weight of evidence. Howerton v. Holt, 23 Tex., 51;Clark v. The State, 31 Tex., 574;Ross v. The State, 29 Tex., 499; Railroad v. Murphy, 46 Tex., 357; Pasch. Dig., art. 1464; R. S., art. 1317.
III. The jury are the sole judges of the facts and the weight to be given them. Railroad v. Murphy, 46 Tex., 357.
Turner & Stuart, for appellee.
The appellant, John F. Womack, sued the defendant, the Western Union Telegraph Company, for damages for the failure to transmit correctly and deliver the following message:
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 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 one thousand miles, and two per cent. for any greater distance. No employee 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 in writing, within sixty days after sending the message.
+-------------------------------------------------+
¦A. R. BREWER, Secretary.¦NORVIN GREEN, President.¦
+-------------------------------------------------+
MARSHALL, TEXAS, Nov. 10, 1879.
Send the following message subject to the above terms, which are agreed to:
To S. M. SWENSON, SON & CO., 80 Wall street, New York:
If not already, close out my Decembers. Buy four hundred May deliveries. Answer.
+--------------------------------+
¦13, paid, $2.39.¦JOHN F. WOMACK.¦
+--------------------------------+
The message was incorrectly transmitted in this, that the letter “d” was added to the word “close,” making it closed, in consesequence of which Womack alleged that he suffered damages. He paid for sending it to New York city, but failed to avail himself of the privilege to have it repeated. He testified that he did not know the contents of the printed portion of the blank form upon which the message was sent, providing for repeating it to prevent mistakes; that he had never read the same.
The message was correctly sent from Marshall to Galveston; the mistake occurred between the latter place and St. Louis, but from what cause was not shown.
Under the charge of the court the jury returned a verdict upon which judgment was rendered in favor of appellant Womack for the sum of $2.85, the amount paid for sending the message, with interest, from which judgment this appeal is taken.
The assigned errors relate to the following propositions announced in the charge of the court:
1. That Womack must be charged with having had notice of the printed conditions upon the blank on which the message was written, and to have assented to the same.
2. That the mere fact that the message received at New York city differed from that sent from Marshall was not of itself evidence of negligence, such as to entitle the plaintiff to recover, this being a charge upon the weight of evidence.
3. That the contract in regard to which the message was sent, being one pertaining to cotton futures, was illegal and void, because against public policy, and that the plaintiff was under no legal obligation to pay the loss. This charge was objected to on the ground that this issue was an immaterial one as between the parties to this suit.
I. In the case of The Western Union Telegraph Company v. Andrew Neill, 57 Tex., 283, some of the questions arising in this case were very carefully considered by this court in the light of numerous authorities. As the result of these authorities, it was there said that “it may now be considered settled law that telegraph companies can, by express contract, or by proper rules and regulations contained in printed notices or otherwise, and brought to the knowledge of those with whom they deal, under such circumstances as to create an implied contract, limit their liability for delays and errors in transmitting and delivering messages, except when caused by the misconduct, fraud or want of due care on the part of the company, its servants or agents.”
In that case it was not questioned but that the sender of the message had knowledge of the contents of the printed conditions accompanying it. In this, as before stated, Womack testified that he did not know their contents, and that he had never read them. Upon this issue, the question arises whether his failure to read these conditions excuses him from being held as charged with knowledge of their contents.
The sound and practical rule of law in such cases is, that, in the absence of fraud or imposition, a party to a contract, which has been voluntarily signed and executed by him, with full opportunity for information as to its contents, cannot avoid it on the ground of his own negligence or omission to read it.
The precise question was made and decided in Grinnell v. Tel. Co., 113 Mass., 301, 307, the regulations in that case having been printed in very...
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