Russell v. Western Union Telegraph Co.

57 Kan. 230 | Kan. | 1896

Allen, J.

The’contention on behalf of the plaintiff is, that he was not a party to the contract and is not bound by its terms; that the defendant is a corporation enjoying corporate privileges derived from the public, and charged with the performance of certain public services; that by reason of its relations to the public it was bound to correctly transmit, and promptly deliver the message to him. The claim of liability because of a failure to perform a public duty, independent of any contract, finds some support in the authorities. 25 Am. & Eng. Encyc. Law, 826 ; Thompson, Electricity, §427. It will be noticed that this is not an action to recover damages for delivering a changed message whereby the receiver was misled. In such a case it may well be argued that a liability arises from the wrongful act of the defendant in delivering to him a false message whereby he is misled to his injury, and that this liability is wholly independent of any contract made by the sender of the message without authority of the receiver. In this case, however, the plaintiff was not niisled by any act of the defendant. The defendant, at most, merely failed to perform its undertaking to promptly transmit and deliver the message. Just how a liability to perform that service can arise independently of any contract with the sender of the message, we are unable to perceive. A telegraph company certainly is under no obligation to transmit messages except when employed by some person to do so. Perhaps, because of the public nature of its business, it may not refuse the employment, nor impose unreasonable conditions for undertaking it; but can it be doubted that, whenever it receives a message for transmission, there is either an express or implied contract on its-part that it will transmit and deliver it ? This Court has heretofore consistently maintained the right of a-person, for whose benefit a contract has been made by another, to accept and adopt the terms of the contract and maintain an action on it in his own name. Anthony v. Herman, 14 Kan. 494; Burton v. Larkin, 36 id. 246; Rouse v. Bartholomew, 51 id. 425. And this rule has been applied in actions brought by the addressee of a telegram against the telegraph company. West v. Telegraph Co., 39 Kan. 93; Telegraph Co. v. Woods, 56 id. 737. We are satisfied with the rule heretofore maintained by this Court, and, under it, the liability of the-defendant must be determined by the contract made with the sender of the message, of which contract the plaintiff was entitled to the benefit.

While it is held that a common carrier may not impose a condition exempting him from liability for his own negligence, and while this rule has been held to apply equally to a telegraph company as engaged in a business substantially like that of a common carrier, a stipulation in the contract made with the sender of the message, that a claim for damages shall be presented within a specified time, has been generally regarded as reasonable and valid ; and where such a contract is made, the great majority of the courts hold that if the claim is not presented within the-time limited, where a reasonable time is fixed, the-plaintiff cannot recover. Sixty days has been held. a reasonable time after delivery of the message. Sherrill v. Telegraph Company, 109 N. C. 527; Wolf v. Western U. Tel. Co., 62 Pa. St. 83; Manier & Co. v. Western U. Tel. Co., 94 Tenn. 442; Lester v. Western U. Tel. Co., 84 Tex. 313; Young et al. v. Western U. Tel. Co., 65 N. Y. 163; Heimann and others v. Western U. Tel. Co., 57 Wis. 562; 25 Am. & Eng. Encyc. Law. 798; Thompson, Electricity, § 247. In this case the message was delivered on October 13, 1889. The claim was first presented by the commencement of this action on the 6th of August, 1890. The plaintiff had no cause of action independent of the contract made for his benefit by the sender of the message. Having failed to present his claim within the time required by that contract, he has lost whatever right of action the contract gave him.

The judgment is affirmed.

All the Justices concurring.