Davis v. Western Union Tel. Co.

• Decision Date: 13 January 1900
• Parties: DAVIS v. WESTERN UNION TEL. CO. [1]
• Court: Kentucky Court of Appeals

54 S.W. 849

107 Ky. 527

DAVIS v. WESTERN UNION TEL. CO. ^[1]

Court of Appeals of Kentucky.

January 13, 1900

Appeal from circuit court, Caldwell county.

"To be officially reported."

Action by John Davis against the Western Union Telegraph Company to recover damages for failure to deliver a telegram. Judgment for defendant, and plaintiff appeals. Reversed.

Tansill & Hodge, for appellant.

Richards Weissenger & Baskin, Wm. Marble, and Geo. H. Fearons, for appellee.

HAZELRIGG J.

In its answer to the suit of appellant for damages growing out of its alleged negligence in delivering a telegram, the appellee company, among other defenses presenting issues of fact relied on a stipulation printed on the back of the message and signed by the sender, to the following effect: "The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission." On demurrer, the lower court seems to have held this provision a bar to recovery by the plaintiff the sendee of the message, and this petition was therefore dismissed. That such a provision, as respects telegrams, is contrary to public policy, and will not be upheld, seems to be indicated in Smith v. Telegraph Co., 83 Ky. 104, and the rule is authoritatively so announced by this court in Telegraph Co. v. Eubank (Ky.) 38 S.W. 1068. It was error to hold that the stipulation presented a valid defense.

It is contended, however, that the demurrer to this paragraph of the answer reaches back to the petition, and that pleading states no cause of action, because the language of the message in dispute did not give the company notice of the relationship between the parties named in the message. But this suit is by the sendee or addressee of the message, who is presumed to have a serious interest in its prompt delivery. The terms of the message also clearly so indicate. Telegraph Co. v. Carter, 85 Tex. 580, 22 S.W. 961; Telegraph Co. v. Luck (Tex. Sup.) 41 S.W. 469. The message under consideration was as follows: "To John Davis, Princeton, Ky.: Brother Mose died yesterday, 7:30 p m. Funeral to-morrow afternoon. [Signed] I. Phar." Whether true or not, the presumption is that Davis was a near relative of the dead man, and the object in sending him the message was that he might attend the obsequies of his relative. In Telegraph Co. v. Adams, 75...