Wheelock v. Postal Telegraph Cable Co. of Massachusetts

• Decision Date: 01 January 1908
• Citation: 197 Mass. 119,83 N.E. 313
• Parties: WHEELOCK et al. v. POSTAL TELEGRAPH CABLE CO. OF MASSACHUSETTS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 119

83 N.E. 313

WHEELOCK et al. v. POSTAL TELEGRAPH CABLE CO. OF MASSACHUSETTS.

Supreme Judicial Court of Massachusetts, Suffolk.

January 1, 1908

COUNSEL

Robert G. Dodge and Charles W. Blood, for Plaintiffs.

Carver Wardner & Goodwin, for defendant.

OPINION

KNOWLTON C.J.

The plaintiffs delivered to the defendant a message for transmission to their agents in Australia. It failed to reach its destination, and this action was brought to recover damages suffered by the plaintiffs from this cause. The conditions on the back of the blank, subject to which the message was received and the contract made by the defendant were, in part, as follows: 'To guard against mistakes or delays, the sender of a message should write it legibly and order it repeated, that is, telegraphed back to the sending station for comparison. For such repeating an additional charge of one-quarter the regular rate will be made. * * * It is agreed between the sender of the message on the face hereof and this company that said company shall not be liable for mistakes or delays in transmission or delivery, or for nondelivery or misdelivery of any unrepeated message beyond the amount of that portion of the charge which may or shall accrue to this company out of the amount received from the sender for this and the other companies by whose lines such message may pass to reach its destination, and that this company shall not be liable for mistakes in the transmission or delivery, or for nondelivery or misdelivery of any repeated message beyond fifty times the extra sum received by this company from the sender, for repeating such message over its own lines. * * * This company shall not be liable in any case where the claim is not presented in writing within sixty days after the filing of the message.' The message was delivered to the defendant for transmission on January 9, 1906, and it contained in cipher a direction to the plaintiffs' agents in Melbourne, Australia, to buy a quantity of wool. The agents had no knowledge of this message until on or about February 22d, when they received from the plaintiffs a letter written on January 20th, which contained a reference to the message. They immediately sent a message in cipher to the plaintiffs, which was received on February 23d, of which the translation was as follows: 'Have not received any telegram dated January 9, referring to your letter dated January 20th.' The plaintiffs, on February 23d, sent their clerk to the defendant's office, and he saw the general manager and showed him the cablegram from the plaintiffs' agents, and told him how important it was to get their messages through, and asked for an explanation. Within a few days he called once or twice more to inquire about the matter, and was informed that nothing had been learned. Under date of February 23d the defendant's manager wrote the plaintiffs a letter, which, omitting the formal parts, was as follows: 'We are investigating the service of your cablegram of January 9th to Scuiridae, Melbourne. This investigation is made through mail, and a full report of service will necessarily be delayed some weeks. The investigation will be most thorough, and the party at fault for any negligence that may be shown will be promptly reprimanded. We will communicate with you further immediately upon return of these papers.' Ten days after this a representative of the defendant called at the plaintiffs' office and tendered one of the firm a sum equivalent to the cost of sending the message, stating that this was all the defendant would do, and asking for a receipt for the money. The plaintiffs refused to accept the money. No further communication was received from the defendant in regard to the matter until about April 4, 1906, when the defendant handed them a letter dated April 3d, which had been written by the superintendent of the defendant's claim department to the defendant's general superintendent, which referred to the plaintiffs' complaint in regard to this cipher cablegram, and continued as follows: 'Investigation shows that this message was promptly transmitted from originating station; but in view of the statement of the firm in Melbourne for whom it is said to have been intended that they did not receive it, the tolls may be refunded to the sender. This would be the full extent of the liability of the company in whose hands the failure may be shown to have occurred.' Immediately afterwards the plaintiffs consulted counsel for the first time in regard to the matter. On April 12th they sent the defendant a written claim for damages growing out of the loss of the message. On May 14, 1906, the defendant sent to the plaintiffs' counsel a letter which had been written by its vice president to its general superintendent, referring to the letter of the counsel in regard to the claim, and saying that the company had never received any claim from the plaintiffs, but had received an oral complaint about the cablegram. The letter went on to state the facts in regard to the receipt of the message for transmission, and the result of the investigation, and the offer of the defendant to refund the tolls to the senders. It ended with these words: 'Of course we could not have favorably considered any other claim in the matter. Please advise the attorneys accordingly.' On June 1, 1906, the defendant's vice president wrote to the plaintiffs' counsel, saying that, as the plaintiffs had no legal or equitable claim against the company, and could not have against any other company, for any sum in excess of the tolls on the message, no claim could be entertained. This suit was brought on June 4, 1906.

The first question in the case relates to that part of the contract which relieves the company from liability 'where the claim is not presented in writing within sixty days after the filing of the message.' Such a stipulation is a reasonable provision for the protection of the company against stale claims, and for securing an opportunity to investigate claims founded on an alleged breach of contract, or any negligence, before the facts pass out of the memory of those who ought to know them. The validity of this kind of requirement has been sustained by a great weight of authority. Grinnell v. Western Union Telegraph Co., 113 Mass. 299-307, 18 Am. Rep. 485; Primrose v. Western Union Telegraph Co., 154 U.S. 1, 14 S.Ct. 1098, 38 L.Ed. 883; Young v. Western Union Telegraph Co., 65 N.Y. 163; Heimann v. Western Union Telegraph Co., 57 Wis. 562-565, 16 N.W. 32; Western Union Telegraph Co. v. Dougherty, 54 Ark. 221-223, 15 S.W. 468, 11 L. R. A. 102, 26 Am. St. Rep. 33; Wolf v. Western Union Telegraph Co., 62 Pa. 83, 1 Am. Rep. 387; Russell v. Western Union Telegraph Co., 57 Kan. 230, 45 P. 598; Albers v. Western Union Telegraph Co., 98 Iowa, 51, 66 N.W. 1040; Hill v. Western Union Telegraph Co., 85 Ga. 425, 11 S.E. 874, 21 Am. St. Rep. 166; Cole v. Western Union Telegraph Co., 33 Minn. 227, 22 N.W. 385. The decision in Conrad v. Western Union Telegraph Co., 162 Pa. 204, 29 A. 888, that such a condition was not reasonable in reference to a message sent from Philadelphia to Shanghai, is not in accordance with the general current of authority, and we are not inclined to follow it. Other cases relied on by the plaintiffs have held such a limitation to be inapplicable or unreasonable where the message was not delivered. Some of these were decided upon language different from that before us, and others upon grounds that are inconsistent with the decisions in this Commonwealth. Such a limitation has express legislative sanction in Rev. Laws, c. 122, § 11. We are of opinion that this is a reasonable provision which was binding upon the plaintiffs.

It is contended by the plaintiffs that this requirement was waived by the defendant. Questions like that which arise on this contention have often been considered in suits upon policies of insurance. There was a series of communications between the parties touching the subject, in all of which, from first to last, the defendant discussed the question of liability on its merits, and professed in the beginning to intend to deal with it, and finally to have dealt with it, in reference to rights created by other parts of the contract, apart from any question as to the formal presentation of a claim in writing. The defendant's conduct in regard to it was such as naturally to throw the plaintiffs off their guard, and it appears that they did not read this stipulation nor consult counsel about their claim until after the 60 days had expired. We think they naturally might infer from the defendant's conduct that the claim was to be considered and determined upon its merits, and that there was no intention to set up a formal or technical defense, founded on the time or manner of presenting the claim. We are of opinion that there was evidence for the jury on the question whether the defendant waived its right to rely upon...