Wolf v. Western Union Telegraph Co. , 1869 Pa. LEXIS 216 ( 1869 )

The opinion of the court was delivered,

by Agnew, J.

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,” and between it and the telegram were printed the words, “ Send the following message subject to above terms which are agreed to.” The message followed immediately, signed with-the name of the plaintiffs’ firm. • This undoubtedly amounted to a written agreement by the plaintiffs to send their message according to the terms they thus subscribed. The question is, whether it is binding on them ?

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 it be so unreasonable as to render it contrary to public policy and therefore void. Though not wholly alike, telegraph companies and common carriers have some resemblance to each other in the public nature of the duties each performs. Hence the duties imposed upon them by the Acts of 1849 and 1851, under the sanction of penalties. This public character of telegraph companies is adverted to in The New York and W. Printing Tel. Co. v. Dryburg, 11 Casey 302, 303. In relation to the duties which concern the public, the unreasonableness of the rules adopted by these companies must therefore be scanned with an eye to their public policy. But clearly it is not unreasonable that a telegraph company should require notice of claims for its defaults within a reasonable time before being held to answer for the alleged default. From the very nature of its business, this may be essential to its protection against unfounded claims. These companies have often to wrestle with the elements themselves, in the storms which prostrate their lines or prevent their working, and are not to be held to a harsher rule than common carriers, who are excused by the act of God. Within sixty days the cause preventing the transmission of a message on a particular day might be easily ascertained and shown, which after .the lapse of several years could not be discovered or proved. It is urged that the employer might not discover the failure to send his message forward within this time. How far this fact would displace the condition it is not proper now to say; but the reason is inapplicable to this case where, from the nature of the message, its failure to reach its destination must be known, and was known immediately by the employer. Another reason justifying the reasonableness of the provision for notice of the claim is found in the multitude of messages transmitted requiring a speedy knowledge of claims to enable the company to keep an account of its transactions before, by reason of their great number, they cease to be within their recollection and control. If authority be needed, in addition to these reasons, it will be found in the case of Lewis v. The Great Western Railway Co., 5 Hurl. & N. 867.*

Judgment affirmed.