Dodson v. Western Union Telegraph Co.

52 So. 693 | Miss. | 1910

Anderson, J.,

after stating the facts as above, delivered the opinion of the court.

Code 1906, § 3127, is as follows: “The limitation prescribed in this chapter shall not be changed in any way whatsoever by contract between parties, and any changes in such limitations made by any contract stipulation whatsoever shall be absolutely null and void; the object of this statute being to make the period of limitations for the various causes of action the same for all litigants.” Nor the first time, this statute appears in the Code of 1906. Nor the appellant, the contention is made that it condemns the stipulation in question; for the appellees, that it does not, because, on the authority of Southern Express Co. v. Hunnicutt, 54. Miss. 566, 28 Am. Rep. 385, such stipulation is no more than a condition precedent, with which the claimant must comply or lose his claim, and if he does comply he may sue within the time limited by the statute, and that it is not a limitation, but a reasonable regulation. This court did so hold in the Hunnicutt case, and subsequent cases following it; but the supposed evil growing out of that doctrine is what the legislature intended to remedy by the statute under consideration, which denounces as void such stipulations, having the effect to shorten the period of limitation of actions. The language of the statute is broad. The period of limitation prescribed by law cannot be changed “by any contract whatsoever,” nor “in any way whatsoever.” All contracts which directly or indirectly have that effect are condemned. Were the stipulation in question valid, Dodson could have sued, without making claim in writing, at any time within sixty days after the failure to deliver the telegram; but suit after that would be barred. His right of action accrued at the instant of the breach of duty by the telegraph company, and continued for sixty days, and was then cut off: by the contract, but for which he would have had the period in which to sue prescribed by law.

Reversed and remanded.

After the delivery of the above opinion the counsel for appel: lee presented an elaborate suggestion of error.

Mayes, C. J.,

delivered the opinion of the court-in response to the suggestion or error:—

On the original hearing of this case we held that Code 1906, § 3127, abrogated any right that the telegraph company heretofore assumed to make as one of its stipulations that it ■would not be liable for damage in any case where claim therefor was not presented within sixty days after the message was filed with the company. Section 3127 prohibits changing “in any way whatsoever” the limitation prescribed in the chapter, and further provides that “any change in such limitation made by any contract stipulation whatsoever shall be absolutely null and void.” Under a statute so broad as this, concluding with the declaration that its purpose “is to make the period of limitation for the various causes of action the same for all litigants,” it is difficult for us to perceive how its full scope and effect could be carried out unless it is made to comprehend this very case. In the Hunnicutt case, 54 Miss. 566, 28 Am. Rep. 385, this court upheld this stipulation; but there was then no statute on the subject. The vast array of authorities cited in the brief of counsel have no application, in our judgment, because the statute under discussion strikes down all such decisions. The regulation of the company says you cannot sue unless your claim presented within sixty days. This regulation, if given effect, may in some instances, and in this very case will, be a limitation in itself. If it is possible, therefore, under certain conditions, for the stipulation to become itself a limitation, how can it be soundly argued that such a stipulation does not change the limitation prescribed by the chapter “in any way whatsoever ?” If it does this, or if the stipulation superimposes conditions with which there must be a compliance or rights will be barred from suit, it is amending tire statute by the telegraph company saying that, notwithstanding same, a person shall be barred unless he comply with certain conditions imposed by it, and such conditions are void under the statute. Stipulations of the character, under 'discussion are not viewed as contracts in any true sense. They are regulations, and their validity depends, not upon their contractual obligations, but upon their reasonableness as regulations. Public service companies such as this could not refuse to serve any member of the public because such person refused to accede to such regulation as a contract. This is expressly held in the case of Kirby v. Western Union, etc., Co., 4 S. D. 105, 55 N. W. 759, 57 N. W. 199, 30 L. R. A. 612, 620, 621, 624, 46 Am. St. Rep. 765. Such companies as this are bound to" serve the public, and for this reason the law has permitted protection to the public service companies by permitting them to make reasonable regulations. But the legislature may declare what is and what is not a reasonable regulation, and not commit the whole matter to the discretion of the company. The attitude of a public service company toward the public is quite different from that of an insurance company. We do not say how this section may affect the right of an insurance company to place in its contract of insurance a requirement that proof of loss shall be made within a certain time. That question is not involved here at all.

Many states have statutes prohibiting these stipulations, and independently of statutes some courts have held these regulations void as against public policy. The construction of this court with reference to this statute is not unusual. In the case of Davis v. Western Union, etc., Co., 107 Ky. 527, 54 S. W. 849, 92 Am. St. Rep. 371, it is held that a stipulation, in a contract between a telegraph company and sender of a message, that the company will not be liable for damages in any case if the claim is not presented in writing within sixty days after the message is filed, is void as against public policy. To the same effect is the case of Western Union etc., Co. v. Eubanks, 100 Ky. 591, 38 S. W. 1068, 36 L. R. A. 711, 66 Am. St. Rep. 361. In the case of Pacific Tel. Co. v. Undermood, 37 Neb. 315, 55 N. W. 1057, 40 Am. St. Rep. 490, it was held that this same condition, providing that the company should not be.liable for damage unless the claim was presented within sixty days, was unreasonable and without consideration, viewed as a contract, and void as an attempt on the part of the company to limit its liability for its negligence by enacting for itself a statute of limitations. The same thing is held in the case of Western Union, etc., Co. v. Longwill, 5 N. M. 308, 21 Pac. 339. In short, it was within the power of the legislature to prescribe that these stipulations should be abolished, and this we think section 3127 has done. The telegraph company can suffer no more inconvenience from the abolition of these stipulations in this state than it is now suffering in other states that have similar statutes.

The suggestion of error is overruled.