Western Union Telegraph Co. v. Fairbanks

Bailey, J. The only question presented by counsel for the appellant in their brief is, whether the failure of the plaintiffs to present their claim for damages within thirty days after the date of the message, erroneously transmitted by the defendant, is not a bar to their action for such damages; and in considering the case we have confined our attention to that single question. It is well settled that provisions in contracts of telegraph, express, railroad, insurance and other similar companies, requiring the presentation of claims for damages within a specified time, and barring all claims not so presented, contravene no principle of law or public policy, and are valid. The rule on this subject is so fully discussed and illustrated in the decisions cited by counsel for the appellant, that it needs no elaboration here. Whatever may be said of the other stipulations of the contract set up in this case, this provision, if shown to have been assented to by the plaintiffs, is binding on them and must be held to be a bar to their recovery. The question is, was it assented to by the plaintiffs, or, in other words, is it, under the evidence in this case, to.be held to constitute a part of the contract between the parties? The rule adopted in this State by the Supreme Court seems to be, that whether the printed matter on the blank of a telegraph company on which a message is written, and signed by the sender, is a part of the contract or not, is a question of fact to be determined by the eirenmsiances of the case. Tyler v. W. U. Tel. Co., 60 Ill. 421. This rule is adopted or borrowed from decisions m the analogous cases of printed stipulations on receipts given to shippers by express and railroad companies, in which it is held that whether the shipper has knowledge of the terms and assents to the restrictions of the receipt, is for the jury to determine as a question of fact upon evidence aliunde, and that all the circumstances attending the giving of the receipt are admissible in evidence to enable the jury to decide that fact. Apart from the paper itself, the only evidence in the record bearing upon the question of the plaintiff’s assent to the printed stipulations on thé message blank, is to be found in the deposition of the plaintiff’s agent who sent the message. He testifies that when he sent it, he did not notice in the least the printed conditions on the blank «which he used, and did not know what they were. Some effort was made on cross-examination to show that he was in the habit of sending messages over the defendant’s line frequently, using the defendant’s ordinary printed blanks, but as all the questions put to the witness on that subject on cross-examination relate, by their terms, to the date of taking the deposition, which was some two years subsequent to his sending the message in controversy, we are unable to see how the cross-examination furnishes any evidence of his familiarity with the defendant’s blanks at the date of sending the message. The proof aliunde then is, that when the plaintiff’s agent wrote and sent the message, he did not know what the printed conditions in the blank were, and that said conditions were not brought to his notice so as to fix knowledge of them upon him. It would thus seem that, under the rule adopted in Tyler v. W. U. Tel. Co., the plaintiff’s assent to said conditions is not shown. It is claimed, however, that the message blank in this case differs in one essential feature from the one considered by the Supreme Court in the Tyler case, viz., that here, in the printed portion of the blank, there are words expressing an agreement by the sender to the printed conditions, and a request that the message be sent subject thereto. The point is by no means free from difficulty, but as we understand the Tyler case, we are constrained to hold that it applies to this portion of the printed blank, the same as to the residue. If evidence aliunde is requisite to show the assent to and adoption by the sender of the form of contract printed on the blank, it is difficult to see why the same proof is not necessary to establish his assent to and adoption as his own of the printed words by which he is made to agree to such proposed contract. But it is insisted that the defendant’s rule requiring the presentation of claims for damages within thirty days, was reasonable, and as such is binding without the plaintiff’s assent. This proposition might perhaps be admitted, if the evidence showed that the rule was brought home to the knowledge of the plaintiffs or their agent at the .time the message was sent. But there is, as we have seen, no such evidence in the record, and the plaintiffs can not be held to be affected by a rule, however reasonable, of which they had no knowledge. There being in our opinion no error in the record, the judgment will be affirmed. Judgment affirmed.