Western Union Telegraph Co. v. Allsworth

• Decision Date: 10 January 1921
• Docket Number: 21433
• Citation: 124 Miss. 221,86 So. 762
• Court: Mississippi Supreme Court
• Parties: WESTERN UNION TELEGRAPH CO. v. ALLSWORTH

86 So. 762

124 Miss. 221

WESTERN UNION TELEGRAPH CO. v. ALLSWORTH

No. 21433

Supreme Court of Mississippi

January 10, 1921

TELEGRAPHS AND TELEPHONES. Conditions on back of interstate telegram exempting company from damages beyond stated amount held binding.

Where a suit was instituted for damages for the nondelivery of a telegram, and a special plea was filed alleging that the message was an interstate message, and that conditions written on the back of the telegram exempted the company from damages beyond a certain amount stated therein, it was error to sustain a demurrer to such pleas, and where the amount recovered was in excess of the maximum amount stipulated for in the contract, the judgment will be reversed.

HON. A E. WEATHERSBY, Judge.

APPEAL from circuit court of Lamar county, HON. A. E. WETHERSBY Judge.

Action by A. E. Allsworth against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The appellee sued the appellant for damages for failure to deliver a telegram sent from Slidell, La., to Camp Shelby Miss. There was no undue delay in the transmission and no question as to the correctness of the message, but the telegram was never delivered.

The appellant filed a plea of the general issue and also two special pleas. The first special plea alleged in substance that the message was an interstate message, and that the case was controlled by the laws of the United States regulating the field of interstate communication by telegraph which undertook and did confer upon the Interstate Commerce Commission full power over the rates, charges, facilities classifications, and practices of telegraph companies engaged in interstate commerce, and conferred on the Interstate Commerce Commission power to approve, alter, or acquiesce in existing rates and classifications; that the Interstate Commerce Commission, prior to the filing of the message in suit, had full knowledge of the rates, charges and classifications established by the defendant, and thereby recognized the right of defendant to charge a higher rate for the greater liability and a lower rate for a less liability, and by reason of which the stipulation in the contract subject to which this message was accepted was reasonable, valid, and binding on the plaintiff, free from any regulation or control on the part of the state of Mississippi or any other state; that the message was delivered to and accepted by the company subject to the terms of a contract in writing which became a part of the contract to transmit and deliver the message, and that it was a term and condition of said contract, and such message was accepted by the defendant with the understanding that the defendant should not be liable for mistake or delay in the transmission and delivery, or for nondelivery, of any unrepeated message beyond the amount charged for sending same; that said message was an unrepeated message, and the defendant was not requested or directed to repeat same, and the defendant was not liable beyond the cost of the telegram.

The third plea adopts largely the allegation of the second plea, and in addition sets up a valuation clause of the contract to the effect that the appellant should not be liable for mistakes or delays in transmission or delivery, or for nondelivery, of the message, whether caused by negligence of its servants or otherwise, beyond the sum of fifty dollars, at which amount the said message was valued by the sender thereof. This plea further avers that under the rules and regulations of the company in regard to valuation of messages all its primary rates and tariffs for the transmission and delivery of messages are based on the assumption that the message is valued at fifty dollars or less, and also avers that its rules, regulations, and rates were approved by the Interstate Commerce Commission prior to the sending of the message sued on.

These special pleas were demurred to and the demurrer sustained, and the cause proceeded to trial and resulted in judgment for plaintiff in the sum of seven hundred and sixty dollars, from which judgment this appeal is prosecuted.

Reversed and remanded.

J. B. Harris and Sullivan & Sullivan, for appellant.

In order that the court may understand the ruling of the court below on the pleadings in this case we call its attention to the fact that this suit at bar was brought to the November term, 1917, of the lower court. The pleas were filed at January term, 1918. The order sustaining the demurrer to the special pleas was made in February, 1918. The judgment was rendered at the January term, 1920. The message was an interstate message.

The case of the Warren-Godwin Lumber Company, in which the supreme court of the United States passed upon and sustained the validity of the unrepeated message, and the valued message stipulations made by the telegraph company, was decided in December, 1919,...