136 Ky. 817 | Ky. Ct. App. | 1910
Opinion oe the Court by
— Reversing.
Leslie Bibb lived in Owensboro. In September, 1905, his wife, with their two little children, went to visit her mother at Valley Park, Mo., about eighteen
The only question we deem it necessary to consider is whether the regulation of the telegraph company
Bibb’s name was not only not in the directory, but he was not a housekeeper. His place of residence was at Seventh and Sycamore streets, some distance from the telegraph office. His place of business was near the telegraph office, but the telegraph manager did not know this, and nobody was there on Sunday. The message could not have been delivered there, and no information could have been gotten there as to where he was. Only eighteen minutes elapsed after the receipt of the message before the closing hour of the office, and it cannot be said that there was a lack of ordinary care in failing to learn where Bibb was in eighteen minutes under the circumstances. So that, if the regulation of the company is valid and protects it, the jury should have been instructed peremptorily to find for the defendant. The circuit court submitted to the jury the reasonableness 'of the regulation, and also in effect told them that it did not protect the telegraph company, unless the sender of the message had notice of it. The regulation had been in effect in Owensboro for a great many years. There is no controversy in the record as to the facts. The volume of business done there is small on Sunday, amounting in all not over $1.50 a day. The statute of the state requires that no work shall be done on Sunday except in matters of necessity and mercy. A telegraph company, like other persons, cannot be required to do business all day Sunday.
While a railway company may run trains on Sunday, it is not required to run trains on Sunday as on
“We think it likewise competent for such companies to establish reasonable hours within which their business may be transacted, and they may fix those hours with reference to the quantity of business done. They may not be required to employ both a day and night messenger, if it be apparent that the business of the office will not justify such employment. This we understand to be the rule everywhere. Telegraph Co. v. Harding, 103 Ind. 505, 3 N. E. 172; W. U. Co. v. Wingate, 6 Tex. Civ. App. 394, 25 S. W. 439; W. U. Co. v. McCoy, Tex. Civ. App., 31 S. W. 210. Under the proof on the points last named, the law is for the defendant and a peremptory instruction should have been given.”
In Western Union Telegraph Company v. Steenbergen, 107 Ky. 472, 54 S. W. 829, 21 Ky. Law Rep. 1290, we also said:
“Again, the office hours of the company where the message was to be delivered to the sendee were from 7 o’clock a. m. to the same hour in the evening, and the message in question, having been received during the night of the 19th, need not have been delivered until within a reasonable time after 7 o’clock on the morning of the 20th.”
In Western Union Telegraph Co. v. Crider, 107 Ky. 600, 54 S. W. 963, 21 Ky. Law Rep. 1336, we again said: “We think, under the proof, the court should have instructed peremptorily for the company. It seems to be well settled that telegraph companies
In none of these cases did it appear that the sender of the message had notice of the regulation, and, while there is some conflict of authority on the question, the great weight of authority sustains the rule we have heretofore laid down. In Sweet v. Postal Telegraph Co., 22 R. I. 344, 47 Atl. 881, 53 L. R. A. 732, the Supreme Court of Rhode Island adopting the same view said: “The controlling question is whether the receipt of the message for transmission after the terminal office had closed was an act of negligence. This depends upon whether the receiving agent was bound to know the time of closing in the terminal office. The decisions on this point are practically unanimous' that a receiving agent is not so bound, for the reason that in view of the great number of telegraph offices all over the country, and their varied conditions, some large and requiring constant service, others small and with infrequent calls, a requirement that every agent should know the hours of every office would be unreasonable, if not impossible. To hold the company to such a duty would either require a uniform time of closing in all offices which are not constantly open, or a directory
“The general rule is that, in the absence of a special contract to transmit a telegram immediately, or an express request for information as to its delivery, it is not obligatory upon a telegraph company to ■acquaint the customer with the office, hours of the compamy at the point to which a message delivered' by him for transmission is directed.”
The rule is also thus stated in 27 Am. & Eng. Ency. of Law, 1038, 1039; “Similarly, where a message is transmitted to the receiving office after its regular hours, the company is not guilty of negligence, in the absence of a 'special undertaking, in deferring delivery until the next morning. The rule upheld by the weight of authority is that the sender of the message is bound by a reasonable rule fixing office hours without regard to his knowledge of it; but the contrary has been held.”
We therefore conclude that, under the evidence, the court should have instructed the jury peremptorily to find for the defendant. This conclusion makes it unnecessary for us to consider the other questions urged by counsel.
Judgment reversed, and cause remanded for further proceedings consistent herewith.