64 F. 459 | U.S. Circuit Court for the District of Western Virginia | 1894
This is an action for damages against the defendant telegraph company for its failure to deliver to the plaintiff
“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 the company for transmission.”
It is admitted that this requirement was not complied with; no notice of the claim being given within 60 days after the messages were filed with the company for transmission, or after their delivery to the plaintiff. All the evidence being introduced in the case, the defendant asked for the following instruction to the jury:
“The court instructs the jury that it was the duty of the plaintiff in this case to present in writing to the defendant company his claim for damages claimed under the declaration within sixty days from the date of filing of the messages from E. X.' Mitchell to the plaintiff; and, if they believe from the evidence that said claim was not presented in writing within sixty days from such date, they must find for the defendant.”
It is admitted by counsel for the plaintiff in the discussion that, according to the decisions of the courts, this rule is a reasonable one as to the sender of the message, and that it is binding upon him; but it is insisted that it is not binding on the sendee or receiver of the message. It is urged that the receiver of the message is not a party to the contract between the sender and the telegraph company. Counsel for the defendant insist that it is binding on both the sender and the receiver of the message, and that neither can recover in a suit with this condition in the contract of transmission. The d( .duration alleges in two or more counts that on the 17th day of September, 1891, and on the 19th day of September, 1891,, one E. Y. Mitchell, a curator of the University of Missouri, delivered to the defendant a certain message or dispatch at his office in the town of Rolla, Mo., directed to and addressed to the plaintiff at Abingdon, Va., and contracted with the defendant to transmit and deliver the said dispatch or message to the plaintiff at Abingdon, Va., according to the provisions - of law, and according to said contract, promptly and without delay. It further alleges:'
“That said E. X. Mitcbell paid to the defendant * * * all the costs and charges that it demanded for the transmission and delivery of said dispatch or message, according to its regulations, and according to the contract of transmission and delivery of said dispatch or message as undertaken by it, as hereinbefore set forth; * * * and that the defendant failed * * * to deliver the dispatch promptly without delay, as it was its duty to do under its aforesaid contract; and that its failure to deliver to him the said message or dispatch promptly, as was its duty and obligation to do, was caused by the negligence of the defendant company, its agent,” etc.
In the limited time at the disposal of the court since adjournment yesterday evening, it has not had time to make many extracts from the authorities cited sustaining this position. It refers to Thompson on Negligence (page 847), where it is held that “the receiver of the message is privy to the contract, between the sender and the telegraph company.” Again: “It seems reasonable that, for all purposes of liability, the telegraph company shall be considered as much the agent of him who receives as of him who sends the message.” Sherrill v. W. U. Tel. Co. (N. C.) 14 S. E. 94, is a, case in which it is held that the restriction under discussion applied to the receiver of a message. W. U. Tel. Co. v. Dougherty (Ark.) 15 S. W. 468; Express Co. v. Caldwell, 21 Wall. 264. The foregoing authorities, as well as others that might be cited, sustain the position of counsel for defendant that the limitation of 60 days within which a claim must he filed in writing applies as well to the receiver as to the sender of a message. The court, on principle, can arrive at no other conclusion than that the reasons for the existence and enforcement of the rule against the sender are the same, and equally strong for the enforcement of the same against the receiver.
Waiver: But it is claimed that the defendant company waived its rights to the enforcement of this rule in the correspondence had between its attorney and the attorneys for the plaintiff. The court cannot agree with this position. So far from waiving this requirement, the first letter received from the attorney for the defendant company insists on its enforcement. Its language is:
“1 would call your attention to the printed notice on tills company’s blanks requiring' that all claims for damages be presented in writing within sixty days from the sending of the message. Mr. Findlay has entirely failed in the matter of such requirement, which has uniformly been held by the courts a good and sufficient defense to an action in damages.”
Gonclusion: Thai the condition requiring notice of claim for damages to be given to the company within 60 days is binding upon the receiver as well as the sender of the message. The instruction asked for by the defendant embodies the law, and will be given to the jury.