Western Union Tel. Co. v. Courtney
| Decision Date | 22 October 1904 |
| Citation | 82 S.W. 484 |
| Parties | WESTERN UNION TEL. CO. v. COURTNEY. |
| Court | Tennessee Supreme Court |
Appeal from Circuit Court, Hamilton County; M. M. Allison, Judge.
Action by Texana Courtney against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
George H. Fearous, Brown & Spurlock, and Shields, Cates & Mountcastle, for appellant. W. H. Cummings and C. W. Rankin, for appellee.
This action was brought in the circuit court of Hamilton county to recover damages for the negligent and wrongful failure of the plaintiff in error to promptly transmit and deliver a message filed with it by the defendant in error for that purpose February 8, 1903. The summons was issued February 19, 1903, and served two days later. It contained no other statement of the plaintiff's cause of action than that the defendant is required "to answer Texana Courtney in an action to her damage two thousand dollars" — the usual form of such process.
The declaration, in which the cause of action is fully stated, was filed May 25, 1903.
There is proof tending to show that the message was written on one of the blanks furnished by the company for that purpose, containing a stipulation that the company should not be liable for any damages occurring from a breach of its contract to promptly transmit and deliver the message unless a claim therefor was presented in writing within 60 days after the message was filed for transmission, and that no formal presentation was made. The trial judge instructed the jury that, if the action was begun and the summons served upon the defendant within 60 days next after the message was filed, this would be a sufficient presentation of the claim, and this instruction is now assigned as error.
The stipulation in the contract for transmission is in the usual form used by this company, and is as follows: "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 this company for transmission." This has been held to be a reasonable regulation and valid contract, which the sender of a message is presumed to assent to when he uses a blank upon which it is written or printed in preparing his message, by this and the courts of last resort of nearly all the other states. Manier & Co. v. W. U. T. Co., 94 Tenn. 442, 443, 29 S. W. 732; 27 Amer. & Eng. Ency. of Law (2d Ed.) 1046.
The object and purpose of the stipulation is that the company may have notice of the claim made against it, and intelligently settle with the plaintiff, or prepare its defense while the facts are known and evidence of them obtainable.
The presentation of the claim must be in writing, fairly identifying the message in question, and stating the negligence complained of, and the...
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