5 N.M. 308 | N.M. | 1889
This is an action of trespass on the case, brought by the defendant in error against the . Western Union Telegraph Company, to recover damages on account of alleged negligence in not delivering a telegram sent to him from Springer, New Mexico, on the evening of the fourteenth of January, 1884. Plaintiff resided at Santa Fe, where the message was addressed, and was a physician and surgeon. The purpose of the telegram was to summon him from Santa Pe to Springer to attend a person suffering from a gunshot wound. The message was not delivered until after 9 o’clock in the forenoon of the fifteenth.' The telegram requested the presence of the plaintiff below that night. Two trains — one at 9 o’clock that night and one at 9 o’clock the next morning — had departed after the sending and receipt of the message at Santa Fe, and before the delivery to plaintiff. The telegraph office was in an adjoining building to the drug store, where he kept his office, and was usually found, and within one hundred and fifty or two hundred yards of his residence. He was a well known resident of the city, and at home at the time the message should have been delivered. The declaration is in the usual form, except that it does not state with much fullness of detail the special circumstances of his legal injury. The defendant pleaded the general issue' and a special plea setting up the fact that the message was transmitted upon certain conditions, which are set out in the message put in evidence. One condition was that the company would not be held liable for unrepeated messagés. The other was that unless the person injured should within sixty days present a claim in writing, demanding damages from the company, it would be exonerated from all liability. The message was unrepeated. No demand in writing, claiming damages, was filed with the company within sixty days.
Plaintiff testified that he would have made the visit to Springer, but was prevented by the negligence of the company in not delivering the message until after train time, and that during the day of the fifteenth he was advised by another telegram from the same parties not to come, as it was too late. The injured man died on the fifteenth. He also testified that he would have charged $500 for the trip and professional services, and that such sum would have been a reasonable charge. His testimony was supported by another physician as to the reasonableness of the charge and the value of the proposed services. It also appeared in evidence that it would have required four or five days, including traveling time, to have completed the trip and treatment of the patient. During this time plaintiff admits that he was regularly engaged in the practice of his profession at Santa Fe, and had several patients in charge, but he says he would have made more by going to Springer, as that would have been a consultation fee.
The senders of the telegram were solvent. The damages claimed in the declaration were $1,000. The judgment recovered was for $500. At the conclusion of the evidence the defendant moved the court to instruct the jury to find for the defendant, and suggested reasons therefor. The court refused, and an exception was taken and saved. Exceptions were taken to the refusal of the court to charge- the jury as requested in instructions numbered 3 and 4 moved by defendant, and for giving an instruction by the court of its own motion. Fourteen errors are assigned. The-principal propositions discussed, however, may be ranged under the first, to the effect that the declaration and record do not disclose any legal cause of action against the defendant below; third, that the verdict is not supported by the evidence of the amount of damage sustained by the plaintiff, if any; fourth, that the plaintiff did -not within sixty days present his claim in writing for the damages sued for; seventh, that the court erred in instructing the jury of its own motion as appears in the record.
In Railroad Co. v. Lockwood, 17 Wall. 357, Mr. Justice Bbadley, after an exhaustive discussion of the question of the power of the common carrier to stipulate for exemption from liability on account of negligence, or want of proper care on the part of the carrier or its agents, sums up the conclusions of the court as follows: “(1) That a common carrier can not stipulate for exemption from responsibility, when such exemption is not just or reasonable in the eye of the law; (2) that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.” While the weight of authority is perhaps against classing a telegraph company as a common carrier, still the same reason that makes void the contracts of common carriers for exemption from responsibility for the negligence of the carrier or its employees, makes void the same kind of contracts of telegraph companies. Telegraph Co. v. Blanchard, 68 Ga. 299; Tyler v. Telegraph Co., 60 Ill. 421; Telegraph Co. v. Cohen, 73 Ga. 522; Telegraph Co. v. Dryburg, 35 Pa. St. 298; Telegraph Co. v. Brown, 58 Tex. 170. While telegraph companies are not charged with all the duties and responsibilities of common carriers, they can not contract for restriction of liability for injuries occasioned by culpable negligence or gross carelessness, or willful misconduct of their employees. White v. Telegraph Co., 14 Fed. Rep. 710.
The courts are divided in opinion as to whether a stipulation between the sender of a message and the company, providing that a claim for damages shall be presented within a day named, or within a reasonable time, can be entered into and upheld as a contract. Instead of being a reasonable business regulation, we think the condition named and annexed to the message was an effort on the part of the company to restrict its legal liability to sixty days. It would introduce into the local jurisprudence of every state, territory, or country in which it is sued a species of private statute of limitation, or nonclaim. It would avoid the policy of the state or territory in the matter of the time in which actions both in tort and contract should be brought. But aside from this we think there can be no sound reason for holding that in cases where no contract for total immunity from legal responsibility can be made none can be made for a conditional release or discharge, because public policy alike denies the power to contract on the subject in either instance. In support of this view, in addition to the cases herein referred to, we cite the following: Johnston v. Western Union Telegraph Co., 33 Fed. Rep. 362; Western Union Telegraph Co. v. Cobb, 47 Ark. 344; Western Union Telegraph Co. v. McKibben, vol. 10, N. E. Rep. 894. In the last cited case the supreme court of Indiana held the condition to be void as against the plaintiff, the receiver of the message. The defendant in error was the receiver of the message here and sues in tort for the injury sustained by him. He sustained an injury caused by the confessed negligence of the defendant’s agents in not delivering the message in a reasonable time. Whether the duty to transmit and deliver sprang out of the contract with the sender in whole or in part, the company nevertheless accepted the duty, and did not discharge its obligations. We think there was no error in giving the instruction complained of by the court on its own motion. It correctly stated the law on this subject, although it did not in terms declare that the condition annexed was void. That was the effect of the charge.