By the Court,
Bonnieield, J.:
This action was brought to recover damages alleged to
have been sustained by the plaintiff by reason of the defendant’s delay in delivering a telegraph message to the party to whom it was addressed at Lovelock, Nevada.
It is alleged in the complaint that the said telegram was delivered to the defendant on the 19th day of February, 1895, at about the hour of 1 o’clock in the morning at Grand Junction, in the State of Colorado, to be transmitted by the defendant over its telegraph line to Lovelock, State of Nevada, and there to be delivered to T. J. Barnes; that the plaintiff paid to the defendant the sum of sixty cents, the same being the price demanded by the defendant, and the usual and customary charge of defendant for its services in transmitting and delivering such message; that in consideration of said sum of money the defendant did then and there promise and agree, and it became and was the duty of the defendant to send and transmit said telegram through and over its said telegraph line from Grand Junction, in the State of Colorado, to Lovelock, in the State of Nevada, with reasonable diligence and attention, and without delay or neglect, and to deliver the same without delay or neglect and with reasonable dispatch to said T. J. Barnes at Lovelock, Nevada; that said telegram was duly and promptly sent by defendant to its office at Lovelock, and was received by defendant at its said office on the 19th day of February, 1895; that the said T. J. Barnes, on the. said 19th day of February, and for more than twelve months prior thereto, resided in said town of Love-lock, which was well known in said town; that said Barnes was at his residence on the 19th day of February and every day thereafter up to and including the 23d day of February; that said defendant negligently, willfully and recklessly failed to deliver said telegram to the said T. J. Barnes, and said Barnes never received said telegram until the 22d day of February, 1895, at the hour of 2 o’clock in the afternoon of said day or thereabouts; that said telegram was as follows: “ Grand Junction, Colo., 2-19. To T. J. Barnes, Love-lock, Nevada: Telegraph me ticket to Ogden. William Barnes”; that had said telegram been promptly delivered by said defendant at Lovelock, plaintiff would at once have received from T. J. Barnes a ticket sufficient for his immediate passage from Ogden, Utah, to Lovelock, Nevada; that by
reason of defendant’s negligence as aforesaid, plaintiff was compelled to walk out of the city of Ogden on the 21st day of February and did immediately thereafter walk and tramp from said city of Ogden to the town of Battle Mountain, Nevada, a distance of more than three hundred and twenty miles, all to plaintiff’s great worry and distress of mind; that at said town of Battle Mountain, on or about the 23d day of February, 1895, the plaintiff was, without negligence on his part, run over by a car. on the track of the Central Pacific Railroad Company and his right leg crushed, and thereafter said leg was amputated above the knee, all by reason of defendant’s negligence as aforesaid, and to the plaintiff’s damage in the sum of two thousand dollars.
The defendant answered by denying the allegations of the complaint, and alleging that the dispatch in controversy was filed and received at 1:45 o’clock a. m. at-Grand Junction, Colorado, on the 20th day of February, and by mistake of its operator was dated the 19th day of February; that defendant delivered the message to T. J. Barnes on the 21st day of February; that said Barnes resided two or three miles from Lovelock, in the country; that the manager and messenger of the defendant were ignorant of his location or the proper place to deliver said message, and averring good faith and diligence in its effort to deliver said message on the day it was received; that the injury of the plaintiff at Battle Mountain was caused by his own criminal misconduct, carelessness and negligence. The answer also sets up a certain contract and alleges its execution by both parties. The contract was printed on the back of the message delivered by the plaintiff to the defendant, and so far as it is claimed to be material in this case it is as follows:
"To guard against mistakes or delays, the sender of a message should order it repeated, that is, telegraphed back to the original office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of this message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery, or non-delivery of any unrepeated message, whether happening by the neglect of its servants or otherwise, beyond the amount received for sending the same.” * * *
On the face of the blank form is the following: “Send the following message subject to the terms on the back hereof, which are hereby agreed to.” Immediately below this the telegram in question was written by the operator and signed by the plaintiff.
The jury returned a verdict for the plaintiff for the sum of $1,250 damages, and judgment was entered accordingly. This appeal is taken from the judgment and from the order of the court denying defendant’s motion for new trial.
Negligence:
Counsel for appellant contends that there was no unreasonable delay in delivering the message to T. J. Barnes at Lovelock; that there was no negligence on the part of the appellant with respect thereto. Counsel for respondent contends that there was gross negligence in delaying the delivery of said message to T. J. Barnes after it was received by appellant at its Lovelock office. Counsel have reviewed the evidence fully and argued at great length in support of their respective contentions.
Without reviewing the evidence, in this opinion, upon the many facts disclosed bearing upon the issue of negligence it is sufficient to say, that there is substantial conflict in the evidence with respect thereto, and evidence sufficient to support either contention and that, therefore, this court would not be justified in interfering with the verdict of the jury or the finding of the court in favor of the plaintiff on this issue.
The Contract or Stipulation:
Counsel for appellant points out the following portion of the contract set up in its answer, as being that part on which it relied in the court below and relies on this appeal, to wit:
“ It is agreed between the sender of this 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 the neglect of its servants or otherwise, beyond the amount received for sending the same.”
The telegram in question was an unrepeated message.
The contention of appellant’s counsel with respect to the contract is: That it is reasonable and valid; that the message was received, transmitted and delivered subject to its conditions; that it superseded any legal duty of the defend
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By the Court,
Bonnieield, J.:
This action was brought to recover damages alleged to
have been sustained by the plaintiff by reason of the defendant’s delay in delivering a telegraph message to the party to whom it was addressed at Lovelock, Nevada.
It is alleged in the complaint that the said telegram was delivered to the defendant on the 19th day of February, 1895, at about the hour of 1 o’clock in the morning at Grand Junction, in the State of Colorado, to be transmitted by the defendant over its telegraph line to Lovelock, State of Nevada, and there to be delivered to T. J. Barnes; that the plaintiff paid to the defendant the sum of sixty cents, the same being the price demanded by the defendant, and the usual and customary charge of defendant for its services in transmitting and delivering such message; that in consideration of said sum of money the defendant did then and there promise and agree, and it became and was the duty of the defendant to send and transmit said telegram through and over its said telegraph line from Grand Junction, in the State of Colorado, to Lovelock, in the State of Nevada, with reasonable diligence and attention, and without delay or neglect, and to deliver the same without delay or neglect and with reasonable dispatch to said T. J. Barnes at Lovelock, Nevada; that said telegram was duly and promptly sent by defendant to its office at Lovelock, and was received by defendant at its said office on the 19th day of February, 1895; that the said T. J. Barnes, on the. said 19th day of February, and for more than twelve months prior thereto, resided in said town of Love-lock, which was well known in said town; that said Barnes was at his residence on the 19th day of February and every day thereafter up to and including the 23d day of February; that said defendant negligently, willfully and recklessly failed to deliver said telegram to the said T. J. Barnes, and said Barnes never received said telegram until the 22d day of February, 1895, at the hour of 2 o’clock in the afternoon of said day or thereabouts; that said telegram was as follows: “ Grand Junction, Colo., 2-19. To T. J. Barnes, Love-lock, Nevada: Telegraph me ticket to Ogden. William Barnes”; that had said telegram been promptly delivered by said defendant at Lovelock, plaintiff would at once have received from T. J. Barnes a ticket sufficient for his immediate passage from Ogden, Utah, to Lovelock, Nevada; that by
reason of defendant’s negligence as aforesaid, plaintiff was compelled to walk out of the city of Ogden on the 21st day of February and did immediately thereafter walk and tramp from said city of Ogden to the town of Battle Mountain, Nevada, a distance of more than three hundred and twenty miles, all to plaintiff’s great worry and distress of mind; that at said town of Battle Mountain, on or about the 23d day of February, 1895, the plaintiff was, without negligence on his part, run over by a car. on the track of the Central Pacific Railroad Company and his right leg crushed, and thereafter said leg was amputated above the knee, all by reason of defendant’s negligence as aforesaid, and to the plaintiff’s damage in the sum of two thousand dollars.
The defendant answered by denying the allegations of the complaint, and alleging that the dispatch in controversy was filed and received at 1:45 o’clock a. m. at-Grand Junction, Colorado, on the 20th day of February, and by mistake of its operator was dated the 19th day of February; that defendant delivered the message to T. J. Barnes on the 21st day of February; that said Barnes resided two or three miles from Lovelock, in the country; that the manager and messenger of the defendant were ignorant of his location or the proper place to deliver said message, and averring good faith and diligence in its effort to deliver said message on the day it was received; that the injury of the plaintiff at Battle Mountain was caused by his own criminal misconduct, carelessness and negligence. The answer also sets up a certain contract and alleges its execution by both parties. The contract was printed on the back of the message delivered by the plaintiff to the defendant, and so far as it is claimed to be material in this case it is as follows:
"To guard against mistakes or delays, the sender of a message should order it repeated, that is, telegraphed back to the original office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of this message and this company that said company shall not be liable for mistakes or delays in the transmission or delivery, or non-delivery of any unrepeated message, whether happening by the neglect of its servants or otherwise, beyond the amount received for sending the same.” * * *
On the face of the blank form is the following: “Send the following message subject to the terms on the back hereof, which are hereby agreed to.” Immediately below this the telegram in question was written by the operator and signed by the plaintiff.
The jury returned a verdict for the plaintiff for the sum of $1,250 damages, and judgment was entered accordingly. This appeal is taken from the judgment and from the order of the court denying defendant’s motion for new trial.
Negligence:
Counsel for appellant contends that there was no unreasonable delay in delivering the message to T. J. Barnes at Lovelock; that there was no negligence on the part of the appellant with respect thereto. Counsel for respondent contends that there was gross negligence in delaying the delivery of said message to T. J. Barnes after it was received by appellant at its Lovelock office. Counsel have reviewed the evidence fully and argued at great length in support of their respective contentions.
Without reviewing the evidence, in this opinion, upon the many facts disclosed bearing upon the issue of negligence it is sufficient to say, that there is substantial conflict in the evidence with respect thereto, and evidence sufficient to support either contention and that, therefore, this court would not be justified in interfering with the verdict of the jury or the finding of the court in favor of the plaintiff on this issue.
The Contract or Stipulation:
Counsel for appellant points out the following portion of the contract set up in its answer, as being that part on which it relied in the court below and relies on this appeal, to wit:
“ It is agreed between the sender of this 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 the neglect of its servants or otherwise, beyond the amount received for sending the same.”
The telegram in question was an unrepeated message.
The contention of appellant’s counsel with respect to the contract is: That it is reasonable and valid; that the message was received, transmitted and delivered subject to its conditions; that it superseded any legal duty of the defend
ant in regard to the transmission and delivery; that the contract was intended to modify the legal duties and liabilities of the defendant and that the plaintiff knew he had contracted against the recovery of damages in case of delay or non-delivery, if the message was not repeated.
Upon the other hand counsel for respondent maintains that any stipulation restricting the liability of the company for negligence is against public policy and void; that the stipulation restricting liability for an unrepeated message is unreasonable and void where the complaint is not for mistake or errors in the message but for delay or failure to deliver the message. The discussion with respect to the validity of the contract in question has taken a wide range. Counsel have exhibited great industry in collecting and reviewing the authorities in support of their respective contentions.
We will not follow them through their exhaustive arguments and extended review of many of the decided cases relating to questions which have arisen in other courts with respect to the validity of these stipulations on telegraphic messages, but which questions are not involved in this case. The defendant, when it received said message from the plaintiff and the sum demanded therefor, undertook thereby, and its legal obligation was, not only to transmit the same over its telegraphic line to Lovelock, Nevada, with reasonable care and dispatch, but to there deliver it to T. J. Barnes, without neglect or unnecessary delay. For failure to so deliver the message the law imposed upon it certain liability for the damages which the plaintiff might sustain by reason of negligent or unnecessary delay in the delivery. The question then to be considered and determined on this branch of the case may properly be formulated as follows: Has the contract or stipulation named the legal effect of restricting said liability by reason of the telegram being an unrepeated message, no mistake having been made in the tenor thereof?
It clearly appears to us that no such effect was intended or contemplated by either of the contracting parties when they entered into the contract. The evident and only objects in having telegraphic messages repeated are to enable the operators, transmitting and receiving the same over the
wires, to readily detect and correct any mistakes or errors they might make in the message as received for transmission and delivery, and thus enable the defendant to avoid such errors and their legal consequences. A delay, or the. nondelivery of a message, might be caused by mistake made by the operators in the name or the address of the person to 'whom the message is sent, which might be detected and corrected, if the message was repeated, and thereby delay, or the non-delivery of the message, be avoided. If the delay complained of in this case was attributable to any such mistake, counsel’s contentions and arguments in behalf of the appellant would be based on more reasonable grounds and be supported by many of the decided cases. It is not claimed, however, that the delay, on which this action is based, would or might have been avoided if the message had been repeated. The facts preclude such claim. When the repetition of the message could not have had any tendency to prevent the delay in this case, and when the delay was in no manner attributable to its not being repeated, the stipulation cannot, in our opinion, be held, with any degree of reason, to have the effect of restricting the defendant’s said liability. To consider that the minds of the parties met and, agreed, that the defendant’s liability should be restricted for delay in delivering the message after it reached the Lovelock office, although it might be transmitted to and taken off there without any mistake occurring, it seems to us would be without reason, and would be ascribing to the parties an intent to relieve the defendant from the legitimate consequences of making default in the performance of a legal obligation, however great the damages might be to the plaintiff resulting therefrom, simply because he did not see fit to have the message repeated and pay an additional sum therefor, although the doing of which might prove to be utterly useless and nonsensical as a preventive of such default. So long as the parties are to be regarded as legally competent to enter into contracts, we cannot impute to them any such intent. If the telegraph company had such intent in placing such stipulations on its blank forms, then, evidently, its object was to deceive its patrons and to entrap them into unconsciously relieving it from liability for non-performance
of a plain legal and moral obligation. We are not willing to ascribe to it such intent or object. The repetition of the message would have had no legitimate effect to induce or to expedite the delivery in this case.
“ It is clear that if such a stipulation, assented to, is sustained as having the force of a contract or condition, the company is under no obligation to deliver any unrepeated message. For this reason such stipulations, exacted and assented to, are generally treated as unreasonable and void.” (Sutherland on Damages, sec. 958.)
Authorities:
Many cases have been cited by appellant’s counsel in which it is held that the stipulations as set forth in the printed form used by the telegraph companies are reasonable and valid, but the most of them are cases where mistake was made in omitting words, or in the substitution of words, or where the words of the message were obscure or in cipher, and where the error would likely have been detected if the message had been repeated. On the other hand, counsel for respondent has cited numerous authorities holding to the contrary, and a great many which hold that such stipulations do not have the legal effect of restricting the company’s liability for delay in delivering an unrepeated message after it has been received and correctly transcribed at the terminal office:
Western Union Tel. Co.
v.
Henderson,
89 Ala. 510;
Smith
v.
Western Union,
83 Ky. 104;
Western Union
v.
Broesche,
72 Tex. 654;
Graham
v.
Western Union,
1 Colo. 230;
True
v.
International Tel. Co.,
60 Me. 9;
Hubbard
v.
Western Union,
36 Wis. 558;
Western Union
v.
Eubank,
38 S. W. 1068;
Western Union
v.
Clark,
61 Fed. Rep. 624;
Fleschner
v.
Pacific Postal Tel. Co.,
55 Fed. Rep. 738.
Many other decisions are in line with the above cases. All of these cases are based on better reasoning and sounder legal principles, in our opinion, than the few cases which sustain these stipulations as having the force of a contract or condition with respect to delay or non-delivery of an unrepeated message where no mistake or error has been committed at the initial or terminal office.
Damages:
That the damages awarded by the jury are excessive; that the evidence is insufficient to support the ver
diet, and that the verdict is against law and the evidence, are grounds on which the motion for new trial was based. It will be observed that it is alleged in the complaint that the negligence of the defendant in delaying the delivery of the dispatch resulted in the plaintiff being compelled to walk out of Ogden and tramp to Battle Mountain a distance of more than three hundred and twenty miles, and that he did so to his great worry and distress of mind, and in the plaintiff being run over at Battle Mountain, without negligence on his part, by a railroad car, his leg being crushed and afterwards amputated above the knee, all to his damage in the sum of two thousand dollars. The evidence with respect to the accident at Battle Mountain shows that it was due to the plaintiff’s own negligence and fault, besides the damages resulting to the plaintiff therefrom were not the natural and proximate consequence of the defendant’s breach of the contract to deliver said message without unnecessary delay. This evidence was withdrawn by the court from the consideration of the jury and the court instructed the jury that no damages could be awarded for mental anguish. When this was done there was but little left of the plaintiff’s case on the question of damages.
By partly walking and partly beating his way on the railroad cars the plaintiff arrived at Battle Mountain where the accident occurred. If it be conceded that, “it was natural and probable that he would proceed on foot to Love-lock or steal a ride on the trains” and that “this was what any reasonable man could have anticipated under the circumstances known by the defendant when the telegram was received at Grand Junction,” as claimed by respondent’s counsel, we are of opinion that the damages award of $1,250, by the jury'was, nevertheless, greatly in excess of the damages the plaintiff sustained at Ogden or Battle Mountain, or on the road between the two places, other than from the worry and distress of mind alleged to have resulted from his having to walk and tramp, and damages sustained from the crushing and amputation of the leg, all of which were eliminated from the case by the court. It seems clear that the jury must have, mainly, based their verdict on these mat
ters which were thus withdrawn from their consideration. In this the verdict was against the law as given by the court.
The judgment and order appealed from must be reversed. It is so ordered.
Counsel for appellant urges objections to instructions given, and to the refusal of the court to give instructions he asked for. We are of opinion that counsel has no just cause of complaint in this respect. The instructions were exceedingly favorable to the defendant and in the main substantially as the counsel requested.
Belknap, C. J.: I concur.
Massey, J., being of counsel in the case, did not participate in the above decision.