Harris v. Western Union Telegraph Co.

• Decision Date: 09 May 1899
• Citation: 121 Ala. 519,25 So. 910
• Parties: HARRIS v. WESTERN UNION TEL. CO.
• Court: Alabama Supreme Court

25 So. 910

121 Ala. 519

HARRIS v. WESTERN UNION TEL. CO.

Supreme Court of Alabama

May 9, 1899

Appeal from city court of Montgomery; John G. Winter, Judge.

Action by Mary Harris against the Western Union Telegraph Company. There was judgment for defendant, from which plaintiff appeals. Reversed.

To the special plea, the plaintiff demurred upon the following grounds: "(1) That this is an action to recover damages for the breach of a public duty of defendant, which was caused by its inexcusable carelessness and negligence, and no rule or regulation of defendant can limit its liability for such inexcusable carelessness and negligence, but any attempt to make such limitation is against public policy and void. (2) That this case is an action for damages, brought by plaintiff against the defendant, for the violation of a duty growing out of a contract made by it with plaintiff, and also incumbent upon it to perform as a duty to the public, and such duty is charged to have been violated in an inexcusably careless and negligent manner; and that fact that defendant attempted, by any stipulation, to limit its liability for any such negligence and carelessness, is no defense to plaintiff's claim. (3) That there is nothing in the defendant's said plea to show that plaintiff, at the time of sending such message, was aware of the said limitation set out in said plea, if any such existed." This demurrer was overruled, and the trial was had upon issue joined upon the pleas. The facts of the case are sufficiently stated in the opinion. Upon the court's giving the general affirmative charge in favor of the defendant, at its request the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Gordon Macdonald, for appellant.

Geo. H Fearons, J. M. Falkner, and Ray Rushton, for appellee.

McCLELLAN C.J.

This action is prosecuted by Mary Harris against the Western Union Telegraph Company, and sounds in damages for the negligent failure of the defendant to promptly transmit and deliver to plaintiff's brother at Milton, Fla., a telegram sent by her from Montgomery, Ala., and for the transmission and delivery of which she paid defendant's agent. Defendant pleaded the general issue, and the following special plea "(2) Defendant avers that at the time said alleged telegram was received by it for transmission, and for a long time prior thereto, it had in force a rule that all messages received by it should be sent on one of its blanks, and subject to a contract on the back of said blanks, which said rule was a reasonable one. That the alleged message was written on one of the defendant's blanks, and subject to the contract expressed on said blank, and that part of said contract was in the following language: '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.' And defendant avers that no claim for damages was presented to it within sixty days after said alleged message was filed with the company for transmission."

The rule here set out is a reasonable one. It does not limit the defendant's liability for negligence, as the demurrer to the plea assumes, but only requires reasonable notice to the defendant of claims for damages. Nor is the plea open to the further objection, taken by the demurrer, that it does not show that plaintiff was aware of the rule at the time the message was sent. The averment that the message was written on one of defendant's blanks, upon which the requirement for notice of damages within 60 days was printed, and was sent subject to the contract...