Dickerson v. Western Union Telegraph Co.

• Citation: 114 Miss. 115,74 So. 779
• Court: United States State Supreme Court of Mississippi
• Decision Date: 09 April 1917
• Parties: DICKERSON v. WESTERN UNION TELEGRAPH CO. ET AL

74 So. 779

114 Miss. 115

DICKERSON v. WESTERN UNION TELEGRAPH CO. ET AL

Supreme Court of Mississippi

April 9, 1917

March 1917 [Copyrighted Material Omitted]

APPEAL from the circuit court of Lee county, HON. CLAUDE CLAYTON Judge.

Suit by J. L. Dickerson against the Western Union Telegraph Company and the Postal Telegraph Cable Company. From a judgment for defendant, plaintiff appeals.

See also 111 Miss. 264.

Plaintiff J. L. Dickerson filed suit in the circuit court of Lee county against the Western Union Telegraph Company and Postal Telegraph Company for damages for the failure to deliver a message from E. S. Dickerson to J. L. Dickerson, sent from Tupelo, Miss., to Guin, Ala., said telegram bearing date of November 30, 1912, and reading as follows:

"J L. Dickerson, in care of Mrs. Kirk, Guin, Ala. John Guyton fell dead today Bury tomorrow

"E. S. DICKERSON."

It was alleged that John Guyton was an uncle of plaintiff; that his home was at Cotton Plant, in the state of Mississippi; that the relation between the plaintiff and his uncle was very close, and they were fond of each other; that E. S. Dickerson, brother of the plaintiff, being at Tupelo, and hearing of said death on said day, delivered the above telegram to the Postal Telegraph & Cable Company at Tupelo, Miss., about five o'clock p. m. on said day; that the said company knew of the close relation between plaintiff and deceased, Guyton, and knew that the plaintiff would desire to attend the funeral of the said Guyton, and that the plaintiff was temporarily located at Guin; that the Postal Telegraph & Cable Company accepted the telegram for delivery, and that the Postal Company had an office at both Tupelo, Miss., and Guin, Ala., and a connecting line between said points, but failed to send and deliver it as agreed and contracted; but, by some arrangement between the Postal Company and the Western Union Company, the nature of which is unknown to the plaintiff, the Postal Company turned over the message to the Western Union Company to be sent and delivered, paying the Western Union Company in advance the fee required for such transmission for delivery, and that the Western Union Company owed plaintiff the duty of sending said message and delivering it to him. It is alleged that through the gross, willful, and wanton negligence of the said companies, and each of them, the message was not sent and delivered to the plaintiff on the day it should have been delivered, but through willful, wanton, and gross neglect was not delivered until noon the following day, December 1, 1912, at which time it was too late for the plaintiff to attend the funeral and burial of the said uncle, which took place on that day, and that he could not possibly reach the place where his uncle lived and died; that thereby the plaintiff was grieved and distressed in mind and body on account of being unable to attend the funeral and burial of his uncle. It is further alleged that if reasonable care had been used and exercised by the defendants, or either of them, the telegram could have been delivered, and that the failure to deliver same was the gross, wanton, and willful fault of defendants.

The Western Union Telegraph Company demurred to the declaration as against it, on the following grounds: First, the declaration is vague, uncertain, indefinite, and insufficient; second, it fails to state any cause of action whatever against the Western Union Telegraph Company; third, because if any one is liable to plaintiff, it is the Postal Telegraph & Cable Company and not the Western Union Telegraph Company; fourth, because the declaration shows that there was no contractual relation between the Western Union Telegraph Company and the plaintiff and that the Western Union Telegraph Company is not liable to the plaintiff, but, if liable to any one, is liable to the Postal Telegraph & Cable Company. The court sustained the demurrer of the Western Union Telegraph Company and dismissed the suit as to it.

The Postal Telegraph & Cable Company filed three special pleas in defense of the suit: First, that the Postal Telegraph & Cable Company was a common carrier by telegraph, under the laws of the United States, and that the message upon which suit was based was an interstate message from Tupelo, Miss., to Guin, Ala.; that said message was written upon a blank of the defendant company; that, among other stipulations, in the said sending blank it was therein provided that defendant company was not liable for damages or statutory penalty in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission; that this stipulation is a valid and binding one in the contract of transmission of the message upon which suit is based, and that no claim was presented in writing to the defendant within sixty days after the message was received. This plea was demurred to by the plaintiff on the following grounds: First, because the plea is insufficient at law and presents no defense; second, that the laws of the United States have no application to this cause of action; that the same is wholly governed and controlled by the laws of the state of Alabama and the state of Mississippi, where the transaction took place.

Defendant's second special plea alleged that the defendant was a common carrier under the laws of the United States; that the message in suit was an interstate message, and was written on a regular sending blank of defendant, and, among other stipulations, in said sending blank it was provided that the defendant company "is hereby made agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination"; that this stipulation is valid and binding, and was part of the contract of transmission of the message on which suit is based; that the company made diligent effort to send said message over its own line to Guin, Ala., but was unable to do so by reason of the fact that the Guin office of the defendant company had then, at its regular time, closed for the day, and it therefore became necessary for the defendant company, in an earnest effort to get the message through to destination, to forward the same over the line of another company, which it did by delivering same to the Western Union Telegraph Company, paying the said company twenty-five cents for transmitting same, which was the same amount received by the defendant for sending the message.

This special plea was demurred to by the plaintiff on the following grounds: First, because said plea is insufficient in law, and presents no defense to the cause of action; second, because the laws of the United States have no application to this cause of action; that the same is wholly governed by the laws of Alabama and Mississippi, where the transaction took place; third, because the stipulation set out is against public policy and void, defendant not being permitted by law to contract against its own negligence.

Defendant's third special plea alleges that the defendant is a common carrier under the laws of the United States, and that the message upon which the suit is based was an interstate one; that it was written on a regular sending blank of the company, and, among other stipulations, in the sending blank it is therein provided that the defendant company shall not be liable for nondelivery of any unrepeated message beyond the amount received for sending the same; that the stipulation was valid and binding as a part of the contract upon which the suit is based; that the message was an unrepeated message; and that the amount received by the defendant company for sending same was twenty-five cents, which amount the defendant now tenders and pays into court in satisfaction of the suit.

This plea was demurred to by the plaintiff: First, because it is insufficient in law, and presents no defense to the cause of action; second, because the laws of the United States have no application to this cause of action, same being governed wholly by the laws of the states of Alabama and Mississippi, where the transaction took place; third, because, the stipulation set out in said plea in reference to unrepeated messages is void as being against public policy and violative of the principle that the defendant cannot contract against its own negligence.

The demurrers to each and all of these pleas were presented together to the court below, and judgment entered on each as an entirety. The demurrers being overruled in each case, plaintiff declining to plead further, the suit was dismissed, at his cost.

Judgment reversed, and cause remanded.

W. D. & J. R. Anderson, for appellant.

It will be contended in the supreme court that the appeal so far as the Western Union Company is concerned is barred by the limitation of two years, within which time appeals must be taken.

The suit was dismissed against the Western Union Company on the 16th day of May, 1913. But final judgment as to the other defendant, the Postal Company, was not entered until the 3rd day of April, 1915. In the final judgment dismissing the cause as to the Postal Company, sixty days was granted within which to perfect an appeal to the supreme court if desired. However the petition for appeal, and the appeal bond were not filed until August, 1915. On the 28th day of August, 1915 opposing counsel signed a waiver of the issuance and service of citation of the appeal. The question is whether or not the statute of limitations of two years began to run against the Western Union Company on the 16th day of May, 1913, when the suit was dismissed as to that Company? Was that such a judgment under the law that the plaintiff was enabled to appeal therefrom as soon as it was...