Mathis v. Western Union Telegraph Co.

Lumpkin, Justice.

Mathis brought an action against the telegraph company for the statutory penalty. The blank upon which his message was written had printed upon it the following stipulation: “ The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.” The only question presented for our determination is, whether or not the company is relieved from the penalty in a case where the claim for it was not presented within the time prescribed by this stipulation. The court below adjudicated in favor of the telegraph company upon this question, and the majority of the court are of the opinion that this judgment was erroneous.

In Hill v. Western Union Telegraph Company, 85 Ga. 425, it was held that a stipulation on a blank upon which a telegraphic message was written, to the effect that the company would not be liable for damages in any case where the claim was not presented within sixty days after sending the message, was a reasonable regulation, and therefore obligatory upon the sender. But in Western Union Telegraph Company v. James, 90 Ga. 254, it was held that the contractual limitation of sixty days for presenting a claim for damages against a telegraph company did not apply to the statutory penalty. To the same effect, see Western Union Telegraph Company v. Cooledge, 86 Ga. 104. Thus it has been settled that a claim for damages and a claim for the penalty are separate and distinct things. In none of- the cases above mentioned, however, was the question presented in the case at bar made or passed upon. The identical question arose and was decided in Western Union Telegraph Company v. Jones, 95 Ind. 228, 48 Am. Rep. 713, in which it was held by the Supreme Court of Indiana that a telegraph company may lawfully contract that a claim for a statutory penalty shall be made within a reasonable time, and that in the absence of special circumstances, sixty days is not unreasonable. The Missouri Court of Appeals, in Montgomery v. Western Union Telegraph Company, 50 Mo. App. 591, decided that the terms “any claim,” in a telegraph message blank, included a statutory penalty; and in the same case it was held that a stipulation in such a blank that the company would not be liable for damages unless the claim therefor was made in writing and presented to the company within sixty days after receipt of the message, would protect the company from liability for the statutory penalty where no claim had been presented by the plaintiff and his action was instituted more than sixty days after delivery of the message to the company.

We cannot follow these courts in the conclusions above announced. Our statute imposing a penalty upon telegraphic companies for default in the transmission or delivery of messages is based upon public policy, the object of which is to quicken the diligence of these companies in the performance of their duties to the public. This policy cannot be annulled or defeated by mere regulations adopted by a telegraph company, or by stipulations printed upon its blanks in pursuance of such regulations. The company has no right to require a customer to use a blank with a stipulation upon it as to penalty such as that which was printed on the blank upon which the message of the plaintiff' was written. The mere fact that a customer voluntarily uses such a blank without objection is of no consequence. As he could not be compelled to use it, his so doing is really Avithout consideration, so far as he is concerned, and is not binding upon him. Besides, this is not a matter for contractual negotiations between the parties. In Western Union Telegraph Company v. Taylor, 84 Ga. 408, it was said that “the penalty is for the wrongful violation of a public duty, and neither in whole nor in part for a mere breach of contract,” and this conclusion is borne out by the reasoning of Chief Justice Bleckley on pages 413, 414, and the authorities there cited. We have not the slightest idea that, in enacting the statute now under consideration, the General Assembly ever supposed or intended that a telegraph company would be able to protect itself against the payment of a penalty in the manner here attempted. On the contrary, we feel certain that to allow this to be done would be violative of the legislative policy, and in a large measure would defeat the purpose for which the statute was passed.

It was argued that our statute was adopted from that of Indiana after the decision in 95 Ind., supra, and consequently that the construction of that statute by the Supreme Court of that State should be followed by this court. Our statute is not identical with that of Indiana; and besides, we find, upon examination, that similar statutes, varying more or less in terms, have been passed in a number of the States of this Union, from several of which it might, with equal propriety, be said our statute was taken. But granting, for the sake of the argument, that ours is an adoption of the Indiana statute, the answer to the above contention is, that the Indiana case in no sense involved a construction of the meaning of any words or phrases used in their statute. The court was simply passing upon a contract, or an alleged contract, of which the statute said nothing, and which was urged as a defence to a case arising under the statute. The court was not iindertaking to interpret the statute itself. Ve understand the rule invoked to be applicable where one State adopts legislation existing in another, the courts of which have construed and interpreted the meaning of language used in the statute. An illustration which occurs to us at the moment may be found in the case of Ocean Steamship Co. v. Way, 90 Ga. 747. There it appeared that the term “trinkets,” as used in the “ English Carrier’s Act,” from which our act of Congress was borrowed, had been given by the English courts a certain meaning; and it was held that, in adopting the English statute, Congress advisedly used the word “ trinkets ” as having the meaning which the English courts had attached to it.

On the whole, we do not feel under any restraint from any source to do otherwise than follow our own conclusion upon the question at bar, which we have deliberately reached after a most anxious and careful consideration. Judgment reversed.