W. U. Tel. Co. v. R. S. Edsall, 63 Tex. 668

Watts, J. Com. App. To enable a party to avail himself of an error in the charge of the court it is not necessary for him to except to it. The statute provides that the charge is to be filed “ and shall constitute a part of the record of the cause, and shall be regarded as excepted to, and subject to revision for errors therein, without the necessity of taking any bill of exceptions thereto.” R. S., art. 1318.

Appellant insists that the court erred in the charge to the jury, in assuming that if there had been an alteration in the message in its transmission and delivery as claimed, that then the alteration resulted from the culpable negligence of the company or its agents.

It is a well known fact, that, owing to apparently eccentric and unexpected disturbances of the electric currents, as well as other causes against which prudence and foresight could not provide, although a message may be properly and correctly forwarded from the originating office, with the most exact precision, its passage upon the wire may be entirely interrupted, or the sounds or signals thereby so changed that a different message is received from that which was sent.

Hence the established rule is, that in the absence of a special contract limiting or regulating the liability of telegraph companies, they are not held to insure the safe and accurate transmission and delivery of messages. In the discharge of the duty assumed in transmitting and delivering messages for compensation, they are held to the exercise of such care and diligence as is reasonably adequate to a faithful discharge of the duty. Womack v. W. U. Tel. Co., 58 Tex., 176; W. U. Tel. Co. v Neill, 57 Tex., 283; Breese v. U. S. Tel. Co., 48 N. Y., 132; Sweatland v. Illinois, etc., Tel. Co., 27 Iowa, 433; Ellis v.

American Tel. Co., 13 Allen, 226; Washington etc., Tel. Co. v. Hobson, 15 Gratt., 122. Where there has been a material alteration in the terms of a message in its transmission anil delivery, in the absence of a special contract limiting the liability, then, as to whether or not such alteration is the result of culpable negligence on the part of the company or its agents, is a question of fact, to be determined from the attending facts and circumstances.

It is now the generally accepted doctrine that in such case, where it is shown that the message was received by the company and not delivered, or delivered in a materially altered or changed condition, this makes a prima facie case of negligence against the company, and the burden rests upon it to show that the condition resulted from some excusable cause. 14 Federal Reporter, 722, note x; Gray’s Communicationsbv Telegraph,§ 26, note 3; also § 53, notel.

The effect of the charge may be seen from the following extract: “ And if you further believe that when said message reached its destination, and was received by said Butler, that it was so altered and changed as to read ‘sheep’ instead of ‘Shepyou will find for the plaintiff.” Appellant had adduced evidence tending to show that at that time its line over which the message in question passed was in good condit'on, that the instruments in use were first class, and that it had skilful and careful operators in its employment.

It was therefore error for the court to assume that the alteration was the result of culpable negligence. Under the circumstances that question should have ’^een submitted to the jury by appropriate instructions. It appears with sufficient certainty that the message as signed by appellee was written upon one of the company’s blanks, upon which certain stipulations were printed. Amongst these were that the company would not be liable for errors in unrepeated messages, and unless the claim was presented in writing within sixty days after the message was sent.

In reference to such stipulations the weight of authority is clearly and decidedly that where one writes a message upon one of these blanks, and signs the same without dissent, he will, in the absence of fraud, be estopped from denying the binding force of such regulations, notwithstanding he did not in fact read them. Gray’s Communications by Telegraph, p. 52, note 2. And such a person will not be permitted to show that he did not read or understand the conditions contained in the printed regulations. 14 Federal Reporter, 721, note u, and p. 722, note v.

Appellant in this case asserted these conditions, and especially that with respect to the repeating of the message, as a defense to the action for damages. To obviate the effect of that defense, appellee claimed that he was ignorant respecting the business of telegraphy, and so informed the operator, and requested him to write the message, which he did, and that the operator so held the message to appellee for his signature that the printed conditions were excluded from his view by the operator’s hand, and that he did not see the printing, and hence knew nothing of the matter.

He claims that the operator’s conduct in the matter constituted such fraud upon him as relieved him from the effect of the conditions. It appears from the evidence that when he called upon the operator and informed him of what was desired, that the operator passed out some blanks and told appellee to write the message upon them, but appellee remarked that he knew nothing of the business; that he had never written a message, and requested the operator to write it for him, which was done, appellee dictating the message.

When it had been written and corrected, the operator placed the same upon the counter, keeping one hand upon the top of the message, and pointing to appellee the place where the name should be signed.

It also appears that between the date and address the following words were printed, viz.: “ Send the following message subject to the above terms, which are agreed to.” And just below where appellee signed his name, an index hand was placed and these words printed: “ Bead the notice and agreement at the top.” While the court charged the jury correctly as to the effect of appellee’s signing the message, the court further charged the jury in effect that if the operator by his acts or words misled appellee, or prevented him from reading the conditions, then that they would not be binding upon appellee.

From the character of the verdict, manifestly, the jury found that appellee was not bound by the printed conditions, upon the ground of the fraud of the operator. In Wolf v. W. U. T. Co., 62 Pa. St., 83, it is in effect said that there must not be anything deceptive in the manner in which these printed regulations are, grafted into the contract. And that, notwithstanding the regulations are in small type, yet if_ the notices upon the blanks, calling attention to them, are plainly and conspicuously printed, that will be sufficient.

Appellant claims that the operator was the agent of appellee in writing and preparing the message, and therefore no fraud could be imputable to appellant on account of any fraudulent conduct of-the operator in preparing the message for appellee. Evidently the operator in the preparation of the message was acting for the appellee, and not the company. True, he was the agent of the company to receive and forward messages, but not to write messages for others.

How when appellee specially requested the operator to do this work for him, the operator in respect to that particular matter was as much the agent of the appellee as if he had been a stranger to both parties. To illustrate this thought, suppose that appellee, instead of calling upon the operator, had called upon his friend West, and West had in every respect performed the duty as it was performed by the operator, no one would contend that appellant would be bound by the acts of this stranger.

The record discloses the fact that the printed notice to read the agreement at the top of the message was in plain view of the appellee when he signed the message, and it seems that he neither read nor paid the slightest attention to that; and it is by no means a plausible assumption that if the operator had removed his hand entirely from the message, that the appellee would have given the slightest attention to the printed conditions. He was a witness upon the stand, and did not even intimate that he read the notice, or would have read the conditions had the message been handed to him.

Besides, the fact that at first the operator placed the blanks before the appellee, and directed him to write the message thereon, would tend to show that there was no intentional fraud upon the part of the operator. The finding that the appellee was released from the conditions by reason of the fraud of the operator is not sustained by the facts and circumstances of the case. Throughout there is an absence of the essential elements of fraud which would authorize a court to relieve against the contract.

This may seem to be a hard case; grant that it is; nevertheless, when relief is extended upon that ground, then it is true that hard cases make had law. That no one will be excused on account of his ignorance of the law is a maxim of universal application, for to grant relief upon that account would result in obliterating all law.

Appellant claims that the court erred in submitting, as an element, of damage recoverable in this action, the injury to what is known as the “Ranch Sheep,” because it is asserted such damage was not in the contemplation of the parties as resulting from a breach of the contract at the time it was made. In the leading case of Hadley v.

Baxendale, 9 Exch., 341, which is invariably cited with approval by the American courts, the doctrine is stated as follows: “ Where two parties have made a contract, which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such, breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.” In this case the particular breach consisted in directing the agent to meet appellee with sheep instead of Sbep.

Thus it would seem that the removal of the sheep to Buffalo Springs, assuming that the agent should have acted upon the message, would have been the result according to the usual course of things. For Butler, the agent of appellee, had charge of the sheep, and was subject to the orders of appellee. Now when he received an order directing him to take the sheep to Buffalo Springs, the taking of them to that point is the natural result of giving the order.

Thus the damage to these “Banch Sheep,” occasioned by driving them to and from Buffalo Springs, in compliance with the order, would, as a general rule, be recoverable. To authorize a recovery as to these sheep, appellee would have to show that due care had Leen exercised on the drive, and that the damage necessarily resulted from the exposure, etc. Thus the recovery could be had only for such elements of damage as appellee has asserted in his petition. These conclusions sufficiently dispose of this appeal. The other errors assigned need not be discussed, as they are such as may not arise upon another trial.

Our conclusion is that the judgment ought to be reversed and the cause remanded. Beversed and demanded. [Opinion adopted March 27, 1885.]