W. Union Tel. Co. v. Rains

• Decision Date: 13 January 1885
• Docket Number: Case No. 1927.
• Citation: 63 Tex. 27
• Parties: THE WESTERN UNION TEL. CO. v. W. S. RAINS.
• Court: Texas Supreme Court

63 Tex. 27

THE WESTERN UNION TEL. CO.

v.W. S. RAINS.

Case No. 1927.

Supreme Court of Texas.

Jan. 13, 1885.

APPEAL from Nueces. Tried below before the Hon. J. C. Russell.

This suit was originally instituted in a justice's court, precinct No. 1, Nueces county, against the Western Union Telegraph Co. by W. S. Rains and his brother for $198.90; the demand being presented in the nature of an open account and sworn to as required by statute. Exceptions to the action in this form having been sustained, they brought suit in form of petition. W. S. Rains sent the following message to Chas. Stephens at Mineola, Texas: “Where is John D. Rains? Please answer immediately. Paid here.” By reason of the failure of the company to deliver the message, Rains and his brother, on account of expenses incurred by them, alleged they had been damaged in the amount set out in their account.

The telegraph company filed a plea in abatement as to the proper joinder of the two parties, and also answered, setting up the fact that the sixty days within which the claim for damages as required by contract between the company and sender should be presented, had expired.

The plea in abatement was sustained, and appellee proceeded to prosecute his suit alone. On final trial had before the justice, appellee recovered a judgment for $80. The case was then appealed to the district court, and there the court rendered a judgment for $80 as damages, and $16 interest, for appellee.

Welch & Givens, for appellant, cited, on character of the contract: Western Union Tel. Co. v. Pells & Ray, 2 Law Review, 246; Wolff v. Western Union Tel. Co., 62 Pa. St., 83; Express Co. v. Caldwell, 21 Wall., 264;Young v. W. U. Tel. Co., 65 N. Y., 163; Heirman v. W. U. Tel. Co., Reporter, vol. 16, No. 11; Holst v. W. U. Tel. Co., Sup. Court Georgia, May, 1883.

G. R. Scott, for appellee.

STAYTON, ASSOCIATE JUSTICE.

There are fatal objections to the proceedings had in this case.

The contract under which the message was sent contained the provision that “The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message.”

Claim was not made within the time prescribed as required by the contract.

Agreements of this charater are held to violate no rule based on public policy, and to be reasonable and obligatory. Young v. W. U. Telegraph Co., 65 N. Y., 163; Wolf v. W. U. Telegraph Co., 62 Pa. St., 83; Ripley v. Ins. Co., 30 N. Y., 137;Express Co. v. Caldwell, 21 Wall., 270; Telegraph Co. v. Pells & Ray, 2 Tex. L. Rev., 247. The declaration made by the appellee to the company's operator at Corpus Christi, and his reply thereto, cannot be held to operate as a waiver of the written claim. The declaration of the operator amounts to nothing more than an expression of opinion by him that the facts stated by the appellee did not constitute a cause of action against the appellant, and it therefore becomes unnecessary to consider whether he sustained such relation to the appellant as would make his unqualified declaration that the company...