WESTERN UNION TEL. CO.
shown by the law and the evidence, has been reached, in view of the liberal doctrine of amendments which in the interest of justice now prevails in the courts, I think a court would hardly be justified in setting aside a verdict on that ground. The purpose of all trials is to secure a just resuli,-to arrive at an honest finding. To do this the fedcral courts put aside all the mere technicalities of the law. They are brushed out of the way as so many cobwebs. If the pleading is too narrow to cover the proof, it can be widened, in 11 case where all the issues which will be embraced by the amended pleading were presented to the jury. Proof was offered on them, and the law covering and defining these issues was fully presented. In my judgment neither the actual nature of the case nor the real issue between the parties, as it has been tried, would be changed by an amendment. In such a case, if necessary, it ought to be made, even after verdict, in furtherance of justice. Bambel'geT v. Terry, 103 U. S. 40. After a careful consideration of the case I am brought to the conclusion that substantial justice has been done the parties; that the real merits of the controversy have been reached, and upon these grOlUlds the verdict should stand, ani! judgment should be entered on same. Motion for a new trial will be overruled.
WESTERN UNION TEL.
May 29, 1889.)
D. Texa8, San Antonio Div.
If a message is written by the sender on a telegraphic blank containing stipulations restrictive of the right of recovery in case of neglig-ence in the transmission of the message, he is bound by such stipulations whether he reads .them or not; no fraud or imposition being used to prevent him from acquainting himself with their purport.
A stipulation requiring a claim for damages for such negligence to be presented in writing within 30 days is valid, and, no reason being shown for failing to present it, no recovery can be had. Although a telegraph company's rules prohibit its agents from receiving messages written otherwise than on it.s printed blanks, a sender ignorant of the prohibition is not bound thereby, and hence where the agent, without the sender's request. copies a message written on ordinary paper onto a blank, the sender will not be bound by the stipulations in the blank.
3. SAME-A UTHOlUTY OF AGEl'OT.
A telegraph company is held only to reasonable care and diligence in the transmission of messages, and if stress of weather prevents their being sent by the nsnal and most direct route, the company is not chargeable with negligence by selecting the next best available route.
It is no excuse for delay in transmiting a message that an agent at an intermediate point was in doubt as to its proper destination, the message being addressed to "Wallace" instead of "Wallis," there being no place in the state of the former name, if he knew of the existence of the latter town, and failed to send it to that point.
If the error in'the name was chargeable to the agent who received the message from the sender, the company would be liable, regardless of the diligence used by the agent at the intermediate office to discover the correct destination.
Where the message alleged to have been unreasonably delayed contained information of the probable death of plaintiff's wife. and the only means by which. if the dispatch had been duly received, plaintiff could have arrived before her death was by a train which passed at a distance of 15 miles from the point to which the messa/!.'e should have been sent, within 2 hours and 15 minutes after the earliest time at'which he could have received the message. it is for the jury to decide whether he could have reached het while living, and therefore whether he was injnred by the delay. The recovery in such a case is measured by a proper compensation for the disappointment and anguish suffered by plaintiff's inability to be with his wife before her death. no punitive damages being allowed, nor should the grief naturally arising from the wife's death enter into the determination of the amount awarded.
At Law.' Action for damages. Tarleton & Kellar, for plaintiff. John A. & O. Green, for defendant. MAXEY, J., (charging jury.) The plaintiff, Robert Beasley, brings this suit to recover damages of the defendant for the failure to deli vel' a telegram to him !It Wallis, a station on the San Antonio & Arkansas PaSR Railway. The message, alleged in the petition to have been deli vered by Miss Annie Melas, as ...gent of plaintiff, to the defendant's operator at San Antonio for transmission, is set out as follows: "SAN ANTONIO. TEXAS. January 11. 1888. "1'0 Robert Beasley, News Agent. S. A. &- A. P. Ry. tTain, Wallis, 1'exas: "Dell is worse. come at once.
The telegram has reference to the wife of plaintiff, who (the wife) was then in a crincal condition, and who died on the morning of the 11th, and. as stated by Miss Melas, between the hours of 11 and 12 o'clock. Referring to that telegram, it is alleged by the plaintiff "that said message was written by said Annie Melas upon a half sheet of com01on commercial note paper, and when the same was delivered, as aforesaid, t() the agent of defendant, he, the said agent, of his own volition, and without the request of the said Annie Melas, copied, or rewrote, said message upon one of the blanks of said defendant." It is insisted, on the contrary ,by the defendant that Miss Melas' herself wrote the body of the message, including the signature, and that at her request the agent of defendaI1t, Towhey, merely inserted the address, and that Miss Melas so wrote the message on one of the printed forms or blanks which are in general use by the defendant company; the same being as follows:
Form No. 46.
TliE WESTERN UNION TELEGRAPH COMPANY.
The business of telegraphing is subject to errors and delays, arising- from causeSo which cannot at all times be guarded against, including sometimes negligence of serv-
BEASLEY V. WESTERN UNION TEL. CO.
ants and agents whom it is necessary to employ. Errors and delays may be prevented by repetition. for which, during the day, halfprlce extra is charged in addition to the full tariff rates. The Western Union Telegraph Company will receive messages, to be sent without repetition during the night, for delivery not earlier than the morning of the next ensuing business day at reduced rates, but in no case for less than twenty-five cents tolls for a single message, and upon the express condition that the sender will agree that he will not claim damages for errors or delays or for non-delivery of such messages, happening from any cause, beyoud a sum equal to ten times the amount paid for transmission; and that no claim for damag-6s shall be valid unless presented in writing within thirty days after sending the message. 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 sender hereby guaranteeing payment thereof. 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 conuecting companies or carriers, if desired, without charge and without liability. Trros. T. ECKERT, Genera! Manager. NORVIY GREEY, President.
Receive'r's No. 'l"ime Piled. Check.
Send the following night message, subject to the above terms, which are hereby agreed to.
... ····_ ····
.·_ . ...
READ THE NOTICE AND AGREEMENT AT THE TOP.
You observe a clause in the printed form to the effect "that no claim for damages shall be valid unless presented ill writing within thirty days after sending the message;" and the evidence, without contradiction, clearly showing that no claim for damages was made until the following July, about six months after the death of the wife, the defendant contends that the suit is not maintainable. There is evidence tending to show that Miss Melas did not read tlIe printed matter of the company's form, and was ignorant of its contents. Whether. Miss Melas wrote the message or the body of the message on the printed form furnished by the defendant is a question of fact which you will determine from an examination of all the facts and circumstances in evidence. If she did thus write the message,-if she wrote it on a form containing the stipulation
which I have read to you as to the time for presenting a claim for damare certain principles of law bearing upon that question which it becomes nece8sary for me to call to your attention. 1. It is immaterial whether Miss Melas read the printed matter or not. Upon this point the supreme court of this state say: '''rhe.sound and practiC'al rule of law in such cases is that in the absence of fraud or 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 g-round of his own negligence or omission to read it." Womack v. l'elegraph Co., 58 Tex. 179. In the same connection the court quote the following extract from an opinion delivered by the supreme court of Michigan: "This printed matter on the face of the paper conld hardly eSl'ape the attention at anyone not natnrally or purposely blind who should write a message upon the paper. He must at least know that there is some printpd matter on tht' f ,(:e of the paper, and he lllust be held to know that it had I,epn placed there for some purpose connected with tilt' messag-e. It is therefore no eXl'use for him to say he dId not read the printed matter before his f'yes. It was gross npgligence on his part if he did not. The printed blank, before the lliessage was written upon it, was II general proposition to all p"rsons of the tenns and conditions upon whieh messages would be spnt. By writing the mpssage nndE'r it, signing and delivering it fllr transmission, thE' plaintiff below accepted the prll!,osition, and it became a contrad upon those terms and conditillns." Ill. 180; citing l',ze,qraph Co. v. Carew. 15 lVlkh. 536. also, Telegmph Co. v. Neill, 57 Tex. 285 et seq. I do not say, gentlemen, that Miss Melas was guilty of gross negligence in failing to inlorm herself of the contents of the printed form, but her want of knowledge, under the circumstances, is due to her failure to avail herself of the opportunity she had of obtaining the information, and she and the plaintitf, for whom she was acting, are chargeable with knowledge of what the printed form contained. 2. As before stated to you, the printed form providE's that no clairn for damages, unless presented in writing within 30 days, shall be valid. Referring to a stipulation of that character in a printed telegraphic blank form, the sllpreme court of this state, speaking through :Mr. Justice BTA YTON, say: "Agreements of this character are held to violate no rule based on public policy, and to be reasonable and obligatory." Telegraph Co. v. Rains, 63 Tex. 28. The testimonyin this case shows that the plaintiff, at the time of the death of his wife, resided in San Antonio; that his wife died on the 11th of January; that he reached his home on the night of the same day; and that within three or four days thereafter he was shown by his sister-in-law the message which she says she dE'Iivered to Towhey. He therefore had ample time to present his claim for damages to the defendant, and no reason is disclosed or attempted to be shown by the testimony for his failure to present it within the 30 days. You are instructed, therefore, that if Miss Melas wrote the body of the message on the printed form, to which you havebeen referred, and requested Towhey to write the address, then the plaintiff is not entitled to maintain this suit, and you will find in favor of the defendant. If, however, you con-
BEASLEY V. WESTERN UNION TEl,. CO.
elude from the testimony that, as alleged in the petition, Miss Melas delivered to Towhey a message on note paper, addresf'ed to plaintiff at Wallis, for transmission, and that Miss Melas and Towhey made an agreement for transmitting the message, so delivered by her. for the sum of 30 cents, and that Towhey afterwards, of his own volition, and without request of .:vEss Melas, copied the message on a printed form of the defendant, without directing her attention to what the form contained, then the plaintiff would not be bound by the conditions and stipulations of the printed matter found on the form; and, in that event, you will proceed further and consider other questions affecting the plaintiff's right to recover. III connection with the delivery of the message by Miss MelaE: and its receipt by Towhey your attention will be directed to certain printed rules and regulations of the defendant introduced in evidence. Counsel for defendant that those rules prohibit its agents (operators) from receiving a message unless it be written on a company printed blank. That lUay be true, and yet the prohibition would not prejudiciall,v affect a third party, whI) had, in ignorance of the rules, made a contract or agreement with an agent for sending a message. If an authorized agent of the defendant-and you are instructed that Towhey had full power to act for the defendant in contracting for the transmission of messages (Telegraph Co. v. Btoesche, 10 tl. W. Rep. 735, 736)-receives a message from a person written on note or other kind of paper, and agrees for a stipulated consideration to transmit the message to its destination, the defendant would be bound by such agreement; and the fact that the message llad not been written on a printed blank would be immaterial, unless the sender had actual notice of the prohibitory rule. II the rule of law were otherwise, a telegraph company could effectually escape liability for the negligf'llce of its agents by merely providing them with printed rules. I cannot adopt that view of the law, so repugnant in my judgment to reason, and so contrary to sl),jnd pulJlic policy; and, if you find that Towhey did agree with Miss Melas to send the nJessage in manner and form as claimed in the petition, it will be your duty to deter'nine whether the defendant exert:ified due care and diligence in the effort made to tl'f1nsmit it to the plaintiff. Touching the duties which telegraph companies owe to the public, and the degree of care required of them in the performs nce of their duties, the supreme court of this state this language: "The great weight of authority, ann which, frolU thp nature of the employment of teleg-ral h l'ompanil's, spems fou nded upon is that, though in some essential particulars they partake of thp char.lcter of common carriers, they are not strictly such, and not be held to the same degree of strict responsibility. * * * As our Il'gislatllre, however, has dt'legatpd to telegraph companies the power to exercise the right of eminent domain, and as their employment is qUllsi public, they should so far be governed by the law applicable to common carrit'rs that the gelll'ral duty devolves upon them to serve the pUblic and act impartially ahd in good faith to all alIke, and to spnd messages in the order received. Bnt they are not, as is the general rule with common carrierS, insurers, simply by reason of their occupation, but are held
only to a reasonable degree of care and diligf'nce in proportion to the degree of responsibility." Telegmph Co. v. Neill, 57 Tex. 288. It was therefore the duty of defendant's agents to exercise a reasonable degree of care and diligence, considering the importance and urg-ency of the message intrusted to them, in sending the telegram forward to the plaintitr. Was such diligence exercised by Towhey and the agents at Dal· las and Galveston? Your attention is drawn to the places named particu. larly for the reason that, because of the prevalence of" sleet storms" at that time, the direct line connecting San Antonio and Galveston was out of repair, and it thus became necessary for the defendant to transmit the message by the more circuitous Dallas route. No negligence can be imputed to the defendant, growing out of the impaired condition of the wires between San Antonio and Galveston, as it resulted from causes altogether beyond its control. But the question remains for you to consider, was due diligence used to df'liver the message to the plaintiff via the Dallas line? The message, you will remember from the testimony, was delivered to the agent, Towhey, at San Antonio, Miss Melas testifies, between 12 and 1 o'clock, 10th or 11th of January, and Towhey, about 1:35 A. 11. on the 11th. It is shown by the testimony of the defendant that the message was received at Galveston at 2:15 A. ]\'1. on the 11th, and del<l.yed there until 10:41 A. M. of that day. To account for the deby at Galveston it is insisted by defendant that the telegram wlis addressed to plaintiff at " Wallace," when it should have been" Wallis," and, there being no such place in the state as" vVaBace," it became necessary for the Gal veston office to ascertain from the office at San Antonio the point or placc to which the message should be transmitted. And defendant's counsel further insist that, owing to the lateness of the hoUl' at which the message was received at Galveston, and the crowded busin8SS condition of the wires, the inquiry could not be made of the San Antonio office until the next morning. Now, as to the misspelling of the name of Wallis you should regard that as immaterial, if the defendant's agents, by reasonable c1iligence, could have season!1bly transmitted the message to the plaintiff at the place spelt and known as" Wallis." Although there lUay not have been a place in the state spelt "\VaBace," yet the two names are pronounced allke,-the pronunciation is the same, the only difference being in the terminal letters ofthe narnes,-and Htlle agmts knew of" Wallis" it was their duty to send the message to that point, and, failing to reach the party to whom it was addressed, then they should have made further inquiry as to the proper plact>. Again, ifTowhey, a's the plaintiff contends, was responsible for the mistake, the misspelling of the name,-and of that you must judge from consiclering the testimony ,-then his mistake would be chargeable to the defendant, and in that e\'ent it would not be necessary to inquire into the conduct of the agents at Galveston, for although they may have exeruised the highest degree of <1iligence, still, if the delay at Galveston originated in the fault and negligence of the San Antonio agent, the defendant would be liable to the plaintiff for any injuries which may have resulted <1irectly from that negligence. Whether due diligence was ex-
ercised by defendant's agents is a question solely for you to determine, and in deliberating upon that question you should consider all the facts and circumstances in evidence, and come to such conclusion as will bE' just, fair, and reasonable as between the parties to the suit, If the defendant, through its agents, exercised reasonable care and diligence in the perfon;nance of the duty which it owed the plaintiff in respect of the message to him, it would not be liable in this suit, although the message may not have been delivered at Wallis in time for the plaintiff to have reached his home and been with his wife before her death. If, however, it was negligent in the performance of its duty, you will inquire whether sllch negligence caused or resulted in damage to the plaintiff. It is not every act of negligence that gives It right of action. Upon this point the rule is thus stated by the supreme court of this state: "It may be laid down as a true proposition that bare negligence, unpror]uctive of damage to another, will not gi ve a right of action; negligence causing damage will do so." Railway Co. v. LeDy, 59 Tex. 567; Telegraph Co. v.
Broesche, 10 S. W. Hep. 736; Womack v. Telegraph Co., 58
Now, were the injury and damage of which the plaintiff complains the direct result of negligence on the part of the defendant's agents? Upon this branch of the case it will be necessary for you to carefully look the evidence. The defendant left San Antonio on the 10th of January for Wallis, and reached the latter place at 3:20 A. M. on the 11th. His wife died, according to the testimony of Miss Melas, between 11 and 12 o'clock on the morning of the 11th. There was only one train by which the plaintiff, as he himself testifies, could have reached his wife before her death, and that was the Southern Pacific train which passed Eagle Lake at about 5:35 on the morning of the 11th, and that train reached San Antonio at 11:30 A M. of that day. Wallis is not on the line of the Southern Pacific road and is 15 miles distant from Eagle Lake. Now, to place the case in the most favorable attitude for the plaintiff, let it be assumed that the telegram was delivered to him at Wallis at 3:20 A. M. of the 11th of January, immediately upon his arrival there. Could he then have procured a conveyance of any kind and reached Eagle Lake in time to have taken the Southern Pacific train passing that point for San Antonio? If he could, and he would have thus been enabled to reach his wife before her death, and there was negligence on the part of the defendant's agents in failing to transmit the message to Wallis, as above defined in this charge, then the plaintiff would be entitled to recover. But if the plaintiff could not have reached Eagle Lake in time for said Southern Pacific train, assuming the telegram to have been delivered at Wallis at 3'20 A. M. of the 11th, then the plaintiff should not recover in this suit, for, in that case, the injury of which he complains could not have resulted from defendant's negligence, notwithstanding it may not have exercised due diligence in the transmission of the message. If, in view of the evidence and charge of the court, you find a verdict for the plaintiff, you will award him such sum as will fairly and reasonably compensate him for the disappointment, grief, and mental anguish which he may have suffered on account of his failure to be present with
FEDERAt REPORTER, vol. 3 fl. ' '
his wife before her death. Stuart v;,' Telegraph CO., 66 Tex. 580 et seq; Telegraph Co. v. Broe8che, 10 S. W;'Rep. 736. Under the facts of this case no exernplary or punitive' are recoverable. It is my duty to say to you, in reference to the question of damages, that great caution oughttobeobserved in the trial of cases like this, as it will be so easy and natural'to confound the corroding grief occasioned by the losllo(a wife with the disappointment and mental anguish occasioned by the fault or negligence of the company; for it is only the latter for which a recovery may be had. So Relle v. Telegraph Co., 55 Tex. 313, 314. Under the instructions and the evidence, you will render such a verdict, gentlemen, as you may deem right and proper.
SKINNF.R V. ATCHISO,N,
T. & S. F. R. Co.
June 20, 1889.)
CO,rcuit Oourt, N.
CARRIERS OF PARSENGERS-ACCIDENTs-RrSKS ASSUMED.
A passenger on a railway train, who, while ascending the steps of a car on the invitation f the railway company's agent, is injured by the fall of a servant of the company against her, the fall being caused by accidentally slipping while sta.:lding on the rails of the platforms of two cars, eng-aged in the performance of his duty, cannot recover from tlJe company therefor, as there is no negligence, and the risk of such an accident is assumed lJy the passenger.
At Law. On motion to direct verdict. On October 13, 1887, plaintiff, a lady 45 years of age, was a passenger over the defendant's railroad. traveling from Kansas City to Wellington, Kan. At Newton, an intermediate station, she was obHged to alight and change cars. Being notified by the station agent that the train for Wellington was ready, she started to take her place in the passenger coach. Her testimony was that as she ascended the steps she saw a brakeman suddenly climb the rails of the car platform, as if to adjust the bell-rop , and that almost simultaneously with his ascending the rails he fell backward upon her, crushing her left hand with his foot, and inflicting other serious injuries. A witness for plaintiff testified that he preceded the plaintiff up the steps, and that the brakeman was standing upon the rails, adjusting the bell-rope, when the witness began to ascend the steps. 'I his witness' attention was first attracted by a cry from the plaintiff, and, turning quickly around, he saw the brakeman in the act of falling. Two other witnesses for the plaintiff saw the brakeman about the instant he came in contact with the plaintiff. One of them had not noticed the brakeman before, the other testifying that he saw the brakeman suddenly appear, (but could not tell whence,) and quickly climb the rails in the manner tesWied to by the plaintilf. At the close of the plaintiff's case defendant moved the court to exclude the evidence. This motion was overruled pro forma, and the defendant in trod ueed the evidence of the