Western Union Telegraph Co. v. Halbert

86 So. 760 | Miss. | 1920

Ethridge, J.,

delivered the opinion of the court.

The appellee sued the appellant for failure to promptly deliver the following telegram filed with the company at Starkville, Miss., on October 1, 1920: “Betty died at 2:15 this morning. Will bury here.” This telegram was delivered to the company on the morning of October 1st and reached Tupelo, Miss, at 11:20 a. m. the same day, there being no undue delay in the transmission and no question as to the correctness of the message as transmitted, but the telegram was not delivered to the plaintiff at Tupelo until the morning of October 3,1920, when he received it through the mail.

The company pleaded in abatement that the government had taken over the telegraph system and was conducting it as a governmental agency and that the company was not responsible. There was a demurrer to the plea in abatement, which was sustained, whereupon the company pleaded the general issue and gave notice under the general issue that it would prove that the message in question was received subject to delay on account of the general rush of business at the time of filing of the message and other messages having priority over the wires, and that after the message was received at Tupelo the plaintiff was unknown to the defendant’s agent and that said message was turned over to a messenger for delivery, and the messenger was unable to ascertain the whereabouts of the plaintiff,-and that, after making inquiry of various and sundry persons and using various means to ascertain the whereabouts of the plaintiff, the Tupelo office sent a service message to the Starkville office for a better address, but was unable to secure it, and then placed the message in the mail addressed to the plaintiff.

The defendant also filed special pleas that the message was delivered to and accepted by the company subject to the terms of the contract in writing which became a part of the contract to transmit and deliver the message; that it was a term and condition of said contract, and such message was accepted by the defendant with the understanding that the defendant should not be liable for mistake or delay in the transmission and delivery or nondelivery of any unrepeated message beyond the amount charged for sending same; that said message was an unrepeated message,, and the defendant was not requested or directed to repeat-the same; and that it only received thirty-two cents for the transmission of such message, which charge included its delivery at destination.

It was also pleaded that the message was an interstate message, in this, that in order to transmit the message from Starkville to Tupelo it became and was necessary for the defendant to transmit said message to its proper relay station for the handling of messages which relay station was the city of New Orleans, and that said message was sent from Starlcville, Miss., to New Orleans, La., the proper relay station between Starlcville and Tupelo.

The defendant also pleaded the company had established rules and regulations for the transmission of messages, and that the same were in effect prior to June 18, 1910-, and are still maintained and established, and that thereby messages are classified into “repeated” and “unrepeated” messages, and that in the case of an unrepeated message the defendant assumes no liability except for gross negli-' gence beyond the amount received for sending the same, while in the case of repeated messages defendant does not undertake to limit its liability for the amount received for sending the same, but assumes, on the contrary, liability for not to exceed fifty times the amount received for the message except in so far as such liability may be further limited by other provisions of the contract, and that for the additional work of repeating messages and the additional risk of liability assumed in the case of repeated messages it charges an additional amount equal to one-half, of the charge for an unrepeated message.

Defendant further pleaded that Congress had taken over and assumed full charge of the regulation of interstate communcation by telegraph, and by so doing it removed from the field of state regulation or interference all interstate messages, and that its tariffs with the conditions and regulations of transmitting messages had been approved by the Interstate Commerce 'Commission; that the Interstate Commerce Commission prior to the filing of the message in suit, and prior to the commencement af this suit, had full knowledge of the rates, charges, and classifications established by the defendant, and thereby recognized the right of the defendant to charge a higher rate for a greater liability and a less rate for a less liability as above described, and by reason of which that the stipulation in the contract subject to which this message was accepted was reasonable, valid, and binding on the plaintiff herein, free from any regulation or control on the part of the state of Mississippi or any other state, and that by reason thereof the defendant was not liable beyond the sum of thirty-two cents, the amount received for sending the message.

Defendant further pleaded that by reason of a stipulation in the contract it was not liable for the negligence of its servants in the transmission or delivery or nondelivery of messages, whether caused by negligence or otherwise beyond the sum of fifty dollars, at which amount the said message was valued by the sender thereof.

' These special pleas were demurrd to and the demurrer sustained, and the cause proceeded to trial and resulted in a judgment for the plaintiff in the sum of five hundred dollars, from which judgment this appeal is prosecuted.

The cause was tried in the court below prior to the decision of the case of Postal Telegraph-Cable Co. v. Warren-Godwin Lumber Co., 251 U. S. 27, 40 Sup. Ct. 69, 64 L. Ed.-, in which decision the United States supreme court overruled this court in the cases of Warren-Godwin Lumber Co. v. Postal Telegraph-Cable Co., 116 Miss. 660, 77 So. 601, and Dickerson v. Western Union Telegraph Co., 114 Miss. 115, 74 So. 779, in which this court held that Congress had not occupied the field.

Under the decisions of the United States supreme court referred to, and in the recent case of Western Union Telegraph Co. v. Speight, 252 U. S. 576, 40 Sup. Ct. 344, 64 L. Ed.-, decided October 25, 1920, the pleas presented a valid defense, and under the pleas the utmost recovery that could be allowed would be fifty dollars. Of course, the plaintiffs might take issue with the facts set forth in the pleas if they desire to do so.

For the errors indicated, the judgment will be reversed, and the cause remanded.

Reversed and remanded.