Telegraph Co. v. Short.

plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow, from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract." Leonard v. The New York Tel. Co., 41 N. Y. 544; U. S. Tel. Co. v. Gildersleeve, 29 Md. 232; First National Bank of Barnesville v. Telegraph Co., 30 Ohio St. 555; Railway Co. v. Mudford, 48 Ark. 502, S. C. 27 Am. Rep. 485; 3 Sutherland on Damages, 298-307, and cases cited; Gray on Communications by Telegraph, secs. 82-96, and authorities cited.

In this case, the message indicated that a certain case pending in a court at Bonham was set for hearing or trial on a certain day. The fact that it was sent by telegraph was sufficient to indicate that it was important that Short should know at once the fact intended to be communicated by it. There was enough in it to indicate that Short would probably be induced thereby to go to Bonham to attend the trial of the Seaton case on the day specified therein. This was enough to entitle Short to recover damages. Gray on Communications by Telegraph, sec. 96, and authorities. cited. The damages recoverable, according to the evidence, were recoverable expenses incurred by Short in going to Bonham and returning, and the value of his time lost in so doing.

There was no evidence that the telegraph company had notice of any special circumstances connected with the sending of the message. The message contained all the information the company had. All the evidence about the stopping of a mill, idleness of teams, value of their services, and cost of feeding them, the loss of the services of a valu

Telegraph Co. v. Dougherty.

able man, and loss sustained by reason of the stoppage of the mill, was clearly inadmissible.

The loss sustained on account of expenses of a trip to Bonham and return was $22.50, and the value of the time lost in the making it was $50, making his damage recoverable according to the evidence, $72.35. The verdict should have been for that amount.

If appellee shall enter a remittitur here of $350, the difference between $422.35 and $72.35, within the next fifteen days, according to the rules of this court, the judgment of the court below will be affirmed. Otherwise, it will be reversed, and the cause remanded for a new trial.

NOTE.-See INDEX to this and to previous volumes, titles "Limiting Liability, "Damages; also Notes" on said subjects. See note to next case.

WESTERN UNION TELEGRAPH COMPANY V. DOUGHERTY,

Arkansas Supreme Court, Feb. 14, 1891.

(54 Ark. 221.)

FAILURE TO DELIVER TELEGRAM.- LIMITING TIME TO PRESENT CLAIM. A stipulation in a telegraph blank that all claims for damages for failure, delay or error in transmission, must be presented in writing within specified time, is valid, and failure to observe it will bar a recovery. Cases of this series cited in opinion: Cole v. W. U. Tel. Co., vol. 1, p. 707: Heimann v. W. U. Tel. Co., vol. 1, p. 531; Massengale v. W. U. Tel. Co., vol. 1, p. 724; W. U. Tel. Co. v. Rains, vol. 1, p. 697.

APPEAL by defendant below from judgment of Circuit Court, Jackson county.

U. M. & G. B. Rose, for appellant.

The appellee pro se.

HUGHES, J.: This is an appeal from a judgment for fifty

Telegraph Co. v. Dougherty.

dollars against the appellant, in favor of the appellee, to compensate him for damages sustained by the failure of appellant's servants to deliver a telegram sent by appellee from Newport to Clarendon, Ark. There was printed upon the face of the blank form on which the telegram was written, these words:

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.

The Circuit Court made the following declaration of law in the case: "The condition in reference to delay in presenting claim has no application to a failure to deliver caused by the negligence of defendant's agents." The only controversy in the case is over the correctness of this declaration, and the solution of this depends upon the reasonableness and validity of the above stipulation on the blank of the telegraph company, upon which the message was written by appellee's agent, and sent over appellant's telegraph line.

It has been several times held by this court that a common carrier may limit its liability by contract, though it can not stipulate against its own negligence or the negli gence of its servants. The question is not one of power or right to make regulations, but of reasonableness of the regulations. The stipulation that the company would not be liable, where the claim is not presented within sixty days, was an agreement of the plaintiff with the telegraph company, and was not in violation of any statute, and, if reasonable, and not against public policy, was binding upon him. We know of no principle of the common law that would prohibit it. It was not a contract to cover the negli gence of the telegraph company. It was a stipulation against the delay and neglect of the plaintiff in presenting his claim, and it does not appear unreasonable. By means of the character of the business, and the great number of messages sent over the lines of a telegraph company, and the importance of early information of claims, to enable

Telegraph Co. v. Dougherty.

the company to keep an account of its transactions, and the impossibility of recalling them all and accounting for them from memory, after the lapse of a considerable period of time, it does not appear that a stipulation that a claim for damages should be presented, in writing, within sixty days from the time the message is sent, is unreasonable. Wolf v. West. U. Tel. Co., 62 Pa. St. 87; Young v. West. U. Tel. Co., 63 N. Y. 163; Cole v. West. U. Tel. Co., 33 Minn. 227; Heimann v. West. U. Tel. Co., 57 Wis. 562.

Such a condition is not only not a stipulation against the negligence of the company, but it implies that a liability may be incurred for negligence; and it requires that one who seeks to recover damages for such negligence shall present his claim in writing within sixty days or be held to have waived it. "Conventio vincit legem." Massengale v. West. U. Tel. Co., 17 Mo. App. 257. "When a definite term is fixed, the question of its reasonableness is to be determined by the court." Id. In the above case, thirty days was held to be a reasonable time, and twenty days have been held sufficient.

We know of no public policy that would be violated by conceding to a competent person the right to make a reasonable contract; and it is not unlawful for such a person to limit himself to less time than would be allowed by the statute of limitations, within which to assert his claim for damages for violation of a contract. Such a one may

renounce a privilege allowed him by law, and such renunciation will bind him. It is said that "statutes of limitation prohibit, not the limitation of action, but the indefinite postponement of them." Greenhood on Public Policy, p. 305; N. W. Ins. Co. v. Phonix Oll Co., 31 Pa. St. 448; Wolf v. West. U. Tel. Co., 62 Pa. St. 87; West. U. Tel. Co. v. Rains, 63 Tex. 27. See Gray on Telegraphs, p. 62.

The authorities are almost uniform in maintaining the reasonableness and validity of such a stipulation.

The third declaration of law made by the Circuit Court

Telegraph Co. v. Taylor.

was erroneous for the reasons above indicated; wherefore the judgment is reversed, and the cause is remanded for a new trial.

NOTE.- See INDEX to this and to previous volumes, title "Limiting Time." See note, vol 2, p. 477.

This case is cited in Sherrill v. W. U. Tel. Co. post.

For earlier Arkansas cases upon duties and liabilities of telegraph companies, see vol. 1, p. 526; vol. 2, pp. 474, 477, 479.

WESTERN UNION TELEGRAPH COMPANY V. TAYLOR.

Georgia Supreme Court, Feb. 24, 1890.

(84 Ga. 408.)

PENAL TELEGRAPH STATUTE.- ACTION BY ADDRESSEE.- BAR OF FORMER ACTION.

Under a statute imposing a penalty upon telegraph companies for lack of impartiality, good faith and due diligence, to inure to the benefit of either sender or addressee, to be recovered "by a suit in a justice's or other court having jurisdiction thereof," held, that justices' courts having under the Constitution only jurisdiction in actions ex contractu, the Legislature could not invest them with jurisdiction in such an action; and hence that an action by the addressee of a telegram for the statutory penalty was not barred by a judgment in favor of the defendant in an earlier action brought in a justice's court by the sender of the message. Even payment by the company of the expenses of the plaintiff incurred by reason of non-delivery of the message would not, unless received in full settlement or by way of accord and satisfaction, bar an action for the penalty.

Cases of this series cited in opinion: W. U. Tel. Co. v. Pendleton, vol. 1, p. 632; W. U. Tel. Co. v. Buchanan, vol. 1, p. 1; W. U. Tel. Co. v McKibben, vol. 2, p. 525.

ERROR from City Court of Macon. opinion. Appeal by defendant below.

Guerry & Hall, for plaintiff in error.

M. G. Bayne, by brief, contra.

Facts stated in