59 Pa. Super. 122 | Pa. Super. Ct. | 1915
Opinion by
The plaintiff delivered to the defendant company, at the office of the latter in the city of Philadelphia, a message to be transmitted thence to the secretary of the plaintiff company at Grand Rapids, Michigan. The message was never delivered, and by reason thereof the plaintiff suffered certain damages, to recover which it brought this action. There was ample evidence to warrant a finding that the failure to deliver the message, and the consequent substantial damages, resulted from the negligence of the defendant and its servants. The defendant offered no evidence to rebut such inference. As the record stands then, the loss sustained by the plaintiff is attributable to the negligence of the defendant.
The contention of the parties to this appeal is limited to the measure of damages which should be applied to such established facts. The two opposing theories are respectively based on two different sections of the written conditions,- subject to which the plaintiff agreed the message was accepted. The first of these, being the one on which the defendant relies, is as follows: “The company shall not be liable for mistakes or delays in the transmission or delivery or for nondelivery of any unrepeated message beyond the amount received for sending the same, etc.” As the message in this case was properly classified as an unrepeated message, the defendant contended in the court below and here that its liability was limited to the tariff rate which had been demanded and received for the transmission and delivery of the lettergram. It was further stipulated in the contract that, “In any event the company shall not
It was clearly pointed out in the opinion filed by the learned court below that the long-established policy of the state of Pennsylvania, with respect to the right of common carriers to limit their liability for their own acts of negligence, had necessarily to be abandoned in view of recent federal legislation and the decisions of the supreme court of the United States construing such legislation. Such necessary change has been fully commented upon by this court in our own cases of Dodge v. Express Company, 54 Pa. Superior Ct. 422 and Ridge v. Erie Railroad Company, 54 Pa. Superior Ct. 602, and what we there said need not here be repeated. But whilst we recognize, as we must, the right of a common carrier now to rely on an agreement, accepted by its patron seeking its services, that its liability, even in case of its own negligence, shall be restricted to a sum specified, the carrier must be able to point to the clause in the agreement which clearly and unequivocally binds the shipper to accept such a result in case of loss or damage suffered by him.
The defendant company might have failed to deliver the plaintiff’s message because of the mistake or negligence of some connecting carrier, or .by reason of some accident to the means of transmission not resulting from its own negligence, or from many other conceivable causes not traceable directly to such source. There is no line or word in the first clause of the contract we have quoted which in terms refers to a failure to transmit or deliver by reason solely of the defendant’s own negli
As we view it therefore it ought to follow, not only from a strict interpretation of the language of the two clauses but as well from an adherence to their spirit, that the second clause should be adjudged to be the one controlling under the circumstances presented by this record. The plaintiff produced evidence to show he had suffered substantial damages in excess of this amount. The defendant therefore has suffered no wrong by the judgment of the learned court below confining its liability to the sum of $50.00. The assignments of error are overruled.
Judgment affirmed.
