62 Pa. 83 | Pa. | 1869
The opinion of the court was delivered,
There seems to be but one question in this record. All the others were substantially ruled by the court below in favor of the plaintiffs. The court charged that, under the last clause of the printed terms, the telegraph company was not liable, on the ground that the plaintiffs had not presented their claim for damages in writing within sixty days after sending the message. The message was written and signed by D. K. Wolf & Co. upon a printed blank furnished by the telegraph company. The blank was headed in large letters — “The Western Union Telegraph Company — all messages taken by this company subject to the following terms.” Then came the terms printed in small type. Next came the date, “Lancaster, October 23d 1866,”
It is said in the agreement that the knowledge of the plaintiffs of the terms is a - fact which the court should have submitted to the jury. But no such question was made in the trial. Both parties in their written points, which appear to cover the whole ground of the case, took the fact for granted, by praying for instructions upon the effect of the paper. The plaintiffs themselves asked for no instruction on the ground of ignorance of the terms. It cannot be fairly urged, therefore, that the court took the fact from the jury; while there was no evidence that the plaintiffs were illiterate, or were imposed upon, or of any fact evidencing ignorance of the terms. The paper itself is not deceptive, for though the terms are printed in small type, the attention of the customer is drawn directly to them by the heading, and by the line printed between the date and the message' itself. It is not the case of a mere notice, or of a ticket with limitations in small type, or so arranged as not to arrest attention. We cannot hold, therefore, that the court erred in saying that the plaintiffs having signed the conditions, it is therefore reasonable to presume that they were aware of them.
The last condition is in these words: “ The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message.” This is the agreement of the plaintiffs, and is binding on them unless it is contrary to law, or is unreasi. nable and inconsistent with public policy. There is no statute infringed by it. It falls within none of the provisions of the Acts of 29th March 1849 and 14th April 1851: Brightly 959. It seems to be. prohibited by no principle of the common law. Even common carriers, to whom the most stringent rules have been applied, may limit their liability by express contract, when it is not extended to cover their negligence of duty: Farnham v. Camden and Amboy Railroad Co., 5 P. F. Smith 53. But this condition has no relation to the duty of the Telegraph Company, its operation being confined to a duty to be performed by the employer before he can maintain his action for a neglect of the company’s duty, to wit, to give notice of his claim within sixty days. Similar provisions in policies of insurance have been held to be good: Inland Ins. Co. v. Stauffer, 9 Casey 397; Trask v. Ins. Co., 5 Id. 198.
Not being contrary to law, the contract contained in the condition falls within the legal maxim, eonventio vincit legem, unless
Judgment affirmed.