Clement v. Western Union Telegraph Co.

Telegraph Company. Reasonable regulation. Demand. Damages. Statutory penalty. Notice. A stipulation on the printed forms used hy a telegraph company in its reception ancl delivery of a telegram making the right ■to damages and statutory penalty, for delay or failure to transmit or deliver, dependent on a presentation of the claim in writing, within sixty days after reception for transmission, affects both the sender and sendee with notice, and relieves a telegraph company from liability unless the claim be SO' presented.

FeoM the circuit court of Tallahatchie county. IToN. F. A. Montgomery, Judge. Clement, the appellant, was the plaintiff in the court below; the telegraph company was defendant there. From a judgment for defendant the plaintiff appealed to the supreme court. The opinion of the court sufficiently states the facts. The printed stipulations on the telegram, partly on its face and partly on its back, were not called to the attention either of the sender or of the sendee of the message. They did not agree to a contractual limitation because they made no contract embodying such a narrowing of the right to demand damages. The telegraph company cannot alone make contracts binding its customers, any more than an express company could do so, and this court has decided that express companies cannot do so. Southern Express Go. v. Moon, 39 Miss., 822. And a railroad company has no such power, as decided by this court. Mobile, etc., B. B. Go. v. Weiner, 49 Miss., 725. The evidence showing conclusively that attention was not called to the printed matter upon the forms used in the message, it cannot be said that either the sender or the sendee consented thereto, or contracted as there specified, and if there was no such contract, surely the case should have gone to the jury, and if there was even a conflict, of evidence as to whether the contract was made the ease ought to have been submitted to a jury. The defense rested alone upon the idea that the contract was established. It is admitted that the appellant did not comply with the stipulation plainly printed on the message blank received by the company, and upon the one delivered by it. It is laid down (25 Am. & Eng. Ene. L., 798) as a general rule that the stipulation exempting a telegraph company from liability if claim for damage be not presented to, the company within sixty days of the reception of the message by it, is reasonable. Western Union, etc., Go. v. Jones, 95 Ind., 98; Western Union, etc., Go. v. Way, 83 Ala., 54-2; Western Union, etc., Co. v. Dunfield, 11 Ool., 335; Western Union, etc., Go. v. Baines, 63 Tex., 27; Hill v. Western Union, etc,., Go., 85 G-a., 425; Wolfe v. Western Union, etc.. Go., 62 Pa., 83; Fidlay v. Western Union, etc., Co., 64 Eed. Eep., 459. That the attention of the sender or the sendee, or both, was not called to the stipulation, makes no difference. Womack v. Western Union-, etc., Go., 58 Tes., 176; Grunnell v. Telegraph Go., 113 Mass., 301: Telegraph Go. v. Garew, 15 Mich., 536: Bedpath v. Telegraph Go., 112 Mass., 73; 25 Am. & Eng. Ene. L., 104. Counsel for appellant rests his cause upon the decisions of this court in the cases of Express Go. v. Moon, 39 Miss., 822, and Motile, etc., B. B. Go. v. Weiner, 49 Miss., 725. We find no fault whatever with these decisions. They simply announce that a common carrier cannot limit its common law liability except by express contract, assented to by the party with whom it deals. Counsel overlook' the case of Hunnicutt v. Express Go., 54 Miss., 566, in which this court decides against them the very question now before this court. And again this court, in a case not reported (Bamsey v. Western Union, etc., Go.), recently decided the very question now presented. In addition to the cases cited by our • associates, we call the court's attention especially • to Maniré v. Telegraph Go., 94 Tenn., 442; Sherrill v. Telegraph Go., 109 N. 0., 572; 2 Thompson on Negligence, 446, 447.