Mathis v. Western Union Tel. Co.1

• Decision Date: 31 August 1894
• Parties: MATHIS. v. WESTERN UNION TEL. CO.1
• Court: Georgia Supreme Court

21 S.E. 564

94 Ga. 338

MATHIS.

v.WESTERN UNION TEL. CO.¹

Supreme Court of Georgia.

Aug. 31, 1894.

Telegraph Companies — Penalty for Delay — Stipulation as to Presenting Claim —Public Policy.

The statute imposing upon telegraph companies a penalty for default in the transmission or delivery of messages is based upon public policy, and has for its object the quickening of the diligence of these companies in the performance of their duties to the public. With this object in view, it seeks to encourage both the sender and the sendee of messages to sue for the penalty, by offering to the one who shall first sue the whole amount of the recovery. For a company to protect itself against payment of the penalty by a contract with the sender, made at the time of receiving from him the message to be sent, that it will not be liable unless a claim for the penalty is presented to it or its agents, in writing, within 60 days after the message is filed for transmission, would be contrary to the policy of the legislature in enacting the statute, and all such contracts are void and of no effect. Simmons, J., dissenting,

(Syllabus by the Court.)

Error from superior court, Sumter county; W. H. Fish, Judge.

Action by J. E. Mathis against the Western Union Telegraph Company to recover the statutory penalty for default in delivering a message. Judgment for defendant, and plaintiff brings error. Reversed.

Hardeman, Davis & Turner, W. T. Lane, and Jas. Dodson & Son, for plaintiff in error.

Gustin, Guerry & Hall, for defendant in error.

LUMPKIN, J. Mathis brought an action against the telegraph company for the statutory penalty. The blank upon which his message was written had printed upon it the following stipulation: "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." The only question presented for our determination is whether or not the company is relieved from the penalty in a case where the claim for it was not presented within the time prescribed by this stipulation. The court below adjudicated in favor of the telegraph company upon this question, and the majority of the court are of the opinion that this judgment was erroneous. In Hill v. Telegraph Co., 85 Ga. 425, 11 S. E. 874, it was held that a stipulation on a blank upon which a telegraphic message was written, to the effect that the company would not be liable for damages in any case where the claim was not presented within 60 days after sending the message, was a reasonable regulation, and therefore obligatory upon the sender. But in Telegraph Co. v. Janes, 90 Ga. 254, 16 S. E. 83, it was held that the contractual limitation of 60 days for presenting a claim for damages against a telegraph company did not apply to the statutory penalty. To the same effect, see Telegraph Co. v. Cooledge, 86 Ga. 104, 12 S. E. 264. Thus it has been settled that a claim for damages and a claim for the penalty are separate and distinct things. In none of the cases above mentioned, however, was the question presented in the case at bar made or passed upon. The identical question arose and was decided in Telegraph Co. v. Jones, 95 Ind. 228, in which it was held by the supreme court of Indiana that a telegraph company may lawfully contract that a claim for a statutory penalty shall be made within a reasonable time, and that, in the absence of special circumstances, 60 days is not unreasonable. The Missouri court of appeals, in Montgomery v. Telegraph Co., 50 Mo. App. 591, decided that the terms "any claim, " in a telegraph message blank, included a statutory penalty; and in the same case it was held that a stipulation in such a blank that the company would not be liable for damages...