Dodson v. Western Union Telegraph Co.

• Citation: 52 So. 693,97 Miss. 104
• Decision Date: 13 June 1910
• Docket Number: 14053
• Court: United States State Supreme Court of Mississippi
• Parties: JOHN J. DODSON v. WESTERN UNION TELEGRAPH COMPANY

52 So. 693

97 Miss. 104

JOHN J. DODSON v. WESTERN UNION TELEGRAPH COMPANY

No. 14053

Supreme Court of Mississippi

June 13, 1910

FROM the circuit court of Lawrence county, HON. ROBERT L. BULLARD Judge.

Dodson appellant, was plaintiff in the court below; the telegraph company, appellee, was defendant there. From a judgment in defendant's favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court. The facts as stated by ANDERSON, J., are as follows:

"This is a suit by the appellant, Dodson, against the appellee Western Union Telegraph Company, for damages for failure to deliver a telegram. The court below gave a peremptory instruction to the jury to find for the telegraph company which was done, and judgment entered accordingly, from which this appeal is prosecuted. The telegram in question contained the usual printed stipulation as follows: 'The company will not hold itself liable for errors or delays in transmission or delivery of unrepeated messages, beyond the amount of tolls paid thereon, nor in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.' Appellant did not present this claim in writing nor sue within sixty days after the message was filed for transmission, and for this reason the court below held that he was precluded from recovering."

Reversed and remanded. Suggestion of error overruled.

J. C. Oakes and R. N. & H. B. Miller, for appellant.

The court below sustained the second plea of the defendant which set up the failure of the appellant to propound his claim within the sixty days in writing, as required by a printed provision on the back of the message.

The court below overruled appellant's demurrer to this plea and after the evidence was introduced gave a peremptory charge in favor of the appellee based only on this plea. It could have been based on nothing else, because the evidence shows a clear case of a right to recover the statutory damages at least, as well as other damages. It is therefore the only question in the case, whether the appellant was bound by this requirement printed on the back of the blank on which the message was written to present his claim in writing within sixty days after the message was filed with the company for transmission.

We respectfully submit that whilst this limitation and requirement has been held a reasonable regulation with which a party must comply before he can bring his suit, and if he fails to comply with it that his right of action is lost, yet Code 1906, § 3127, is a complete answer to this plea by the company.

We respectfully submit that Southern Express Co. v. Hunnicutt, 54 Miss. 566, is no longer the law; it was and similar cases have been entirely wiped out by this section of the Code. This provision, Code 1906, § 3127, is a new statute made since those decisions were rendered, and it expressly provides that the limitations of actions provided by the Code "shall not be changed in any way whatsoever by contract between the parties" "and any change in such limitation made by any contract stipulation whatsoever shall be absolutely null and void; the object of this statute being to make the period of limitation for the various causes of action, the same for all litigants."

There is absolutely no escape from this statutory provision, we submit, and this case for that reason ought to be reversed.

J. B. Harris, for appellee.

The question presented for the determination of this court is whether the stipulation contained on the telegraph blank in regard to the presentation of claims for damages is affected by Code 1906, § 3137.

It was urged in the court below that the stipulation for the presentation of claims for damages within sixty days from the date of the filing of the message changed the period of limitation and is therefore violative of the section set forth. On the other hand it was urged, and so held by the court, that this stipulation was in no sense a limitation or a change of the period of limitation prescribed by the statute.

In the case of Southern Express Co. v. Hunnicutt, 54 Miss. 566, it was expressly held that a similar stipulation in an express receipt was in no sense a limitation or an attempt at prescribing a limitation.

The reasons for upholding the validity of this stipulation and upon which the stipulation is based are very clearly set forth in Jones on Telegraph and Telephone Companies, p. 373. He says:

"These stipulations do not operate as a limitation of the time within which suit may be brought, but they are designed merely to give the company notice of the claim, in order that it may be investigated promptly. Messages are usually destroyed after being kept six months, and the company's ability to defend would naturally be affected by a delay in its being informed of a claim. If the sender of a message has sustained a loss by the failure of the company to properly transmit it, he could very easily ascertain this fact within sixty, thirty, twenty, or even within a shorter time, after the message was filed, and it would be no unreasonable rule to require him to promptly notify the company of this fact in order that the latter might remedy the loss or defend itself against the same. The object of transacting business over telegraph lines is to accomplish the desired results in the shortest time possible and surely the sender of the message would find out very soon after it was filed whether or not the message had accomplished its purpose; and it would be no burden or inconvenience on his part to notify the company that the object had not been accomplished, to his loss. The presumptions are that if he fails to notify the company of the improper transmission of the message the rights acquired under this agreement are waived. Another reason justifying the reasonableness of the provision for notice of the claim is found in the multitude of messages transmitted, requiring a speedy knowledge of claims to enable the company to keep an account of its transactions, before, by reason of their great number, they cease to be within their recollection and control."

Stipulations in bills of lading, express receipts and telegraph blanks arise from the very necessity of the case. They are intended to give the carrier reasonable notice that a loss will be claimed in order that it may have an opportunity to investigate the claim. The great multitude of transactions which the carrier has with its patrons makes it almost impossible for it to keep a record of every transaction for any great length of time. These stipulations are nothing but notices that a loss has been sustained and that the claim will be made therefor, and, that notice being given, the claimant can bring his suit at any time within the statutory period.

The stipulation here in question has been uniformly held to be reasonable in this state, not only in cases of carriers of goods but the particular stipulation in telegraph blanks. Western Union Tel. Co. v. Clements, 77 Miss. 748...