72 P. 499 | Utah | 1903
The' respondents were partners engaged in buying and selling horses in the States of Utah and Wyoming, with their principal place of business at Ogden, Utah. On the 24th day of September, 1900, they had a band of horses of 281 head at Oreen River, Wyo., which they had bargained to sell to one Searcy at the agreed price of $11 per head, the horses to be delivered and paid for at Oreen River. ' Respondent B. B. Brooks was to keep R. S. Brooks, who had the horses in charge, informed when Searcy would arrive at Oreen.River to receive and pay for the horses. On September 23,1900, B. B. Brooks delivered to appellant for transmission over its lines from Ogden to Oreen River, a distance of about 201 miles, the following telegraphic message: ‘ ‘ Ogden, Utah, Sept. 23, 1900. R. S. Brooks, Oreen River, Wyo. Searcy there Monday noon or Tuesday morning sure. Oet letters. H. Enge-noen wants buy. Meet you. Price eleven. B. B. Brooks. ’ ’
On September 24th, B. B. Brooks delivered to appellant the following telegraphic message for transmission:
“RUSH. Ogden, Utah. Sept. 24, 1900. R S. Brooks, Oreen River, Wyo. Searcy arrives Oreen River 3 a. m.; did not get anything Idaho. -B. B. Brooks. ’ ’
Neither of these messages reached their destination; R. S. Brooks, on September 24th. called at appellant’s office at Oreen River, and. inquired if there were any messages there for him, and was informed by the operator that there were none. He called again on the 25th, 26th, and 27th, and each time was informed there were no messages for him". Defendant in its answer admitted that the messages in question were delivered to it at the time and place alleged in plaintiff’s complaint, and that the tolls and fees for their transmission were paid by respondents, but alleges that the messages were accepted by defendant subject to the terms and conditions printed on the back of the blanks used by it upon which
Appellant challenges the judgment on two grounds: (1) That appellant is not liable because the claim sued on was not presented within sixty days after the messages were filed in the company’s office for transmission, as provided by the terms printed upon the backs of the printed forms in use by the company for the receiving and transmission, of messages, with which terms and forms respondents were familiar. (2) That the court erred in not instructing the jury to return a verdict for nominal damages only.
There is no merit whatever to appellant’s first contention. The defense that the claim was not presented within sixty days after the messages were filed with
It was also claimed by counsel for appellant in his oral argument that there was nothing on the face of the messages that indicated their nature or importance, and that therefore it cannot be presumed that appellant
The majority of these cases go to the extent of holding that when a telegraph company contracts to transmit a message over its line, and receives the usual tolls therefor, it is legally hound to use ordinary care and diligence in performing such service, and that it will he liable for all damages that are the natural,., immediate and proximate result of any negligence on the part of its agents in not correctly transmitting such message, or in failing to send it at all, notwithstanding the message, may he obscure, and its import and importance not known to the company or its agents.
The first message herein showed on its face that it referred to a commercial transaction. This fact, together with the fact that respondent B. B. Brooks endeavored to send a second message relating to the same matter, with word “RUSH” written conspicuously thereon, was notice to the appellant that these messages were important, and, if appellant had desired any further infor
The record shows that respondents had bargained
This case must, however, be reversed and sent back
Appellant has set up in its answer, as a defense,
The case is reversed, with directions to the trial