934 WESTERN UNION TELEGRAPH CO. V. GEYER. [193 WESTERN UNION TELEGRAPH COMPANY V. GEYER. 4-4600 Opinion delivered April 12, 1937. TELEGRAPH AND TELEPHONES-LIMITATION ON RIGHT TO SUE.-A provision on the reverse side of a telegram reading: "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" is valid, and a suit brought for damages caused by an error in the transmission of the telegram more than sixty days after the message was filed for transmission is brought too late, unless the plaintiff, through no fault of his own, is ignorant of the fact that the message was incorrectly transmitted until after the lapse of sixty days when he will have a reasonable time in which to bring suit after learning of the company's default. Appeal from Polk Circuit Court ; A. P. Steel, Judge; reversed. Francis R. Stark, W. C. Rodgers and Rose, Heming-way, Cantrell ,ce Loughborough, for appellant. Quillin Quillin, for appellee.
ARK.] WESTERN UNION TELEGRAPH CO. v. GEYER. 935 SMITH, J. A former appeal in this case was from the order and judgment of the court sustaining a de-murrer to the complaint. That judgment was reversed, and upon the remand of the cause testimony was heard and the case fully developed, and from a judgment in favor of the plaintiff is this appeal. Geyer v. Western Union Tebegraph Co., 192 Ark. 578, 93 S. W. (2d) 660. The testimony of the plaintiff was to the effect that Mrs. Cora Tumbleson, on May 20, 1935, sent a telegram from Cincinnati, Ohio, to plaintiff, who is ber sister residing at Mena, Arkansas, advising that their brother Leslie had died and that his funeral would be held in Manchester, on Friday at 2 p. m. The telegram as received contained the advice • only that the brother, Leslie, had died suddenly, and contained no information as to the time or place of the funeral. The telegram as sent and as received is set out in the former opinion. Through this error, plaintiff suffered a nervous shock, to compensate which a judgment for $1,500 was rendered in her favor. Numerous questions are raised and discussed in the briefs, but, as we find that the testimony as to the failure to give notice to the telegraph company is decisive of the case, we pretermit a discussion of the other questions. The telegram was received for transmission on one of the blanks provided by the telegraph company for that purpose. Upon the reverse side of this blank there is printed the statement that "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 validity of this limitation was first upheld in the case of Western Union Telegraph Co. v. Dougherty, 54 Ark. 221, 15 S. W. 468, 11 L. R. A. 102, 26 Am St. Rep. 33, where, in so holding, the following reason was given therefor : "By reason of the character of the business, and the great number of messages sent over the lines of a telegraph company, and the importance of early information • of claims to enable the company
936 WESTERN UNION TELEGRAPH CO. v. GEYER. [193 to. keep an account Of •its transactions, and the impossibility„ of recalling them all and accounting for them .from. memory after the lapse of a considerable period of time; it does not appear .that a stipulation that a . claim ,for damages should be. presented in writing within sixty days from the time the message is aent is. unreasonable. (Citing cases.).". . That holding has since been consistently followed 'and reaffinned in numerous decision's of this court cited 'in the briefs of counsel. DecisiOns by the Supreme Court Of the United States and other courts to . the Same .effect axe also, cited. The only • ekception whiCh appears, to:have been Made by this or anY other court is that if the plaintiff, through no fault Of his own, , is ignorant'of the fact that 'the mesSage waS not delivered or . was incOrrectly transmitted until'after the lapse of the sixty dayS he will have a reasonable thhe in. Which to . bring snit after learning , of the Company's . default. W estern.. Union Tele.graPh Co. v. ChapPelle, 180 Ark. 422, 21 . S. W. (2d) 964, 66 A. L..R. 195, i's Snell a case. 'That case, hOwever, like all the others on the subject, recognizes the validity of the:Sixty-day clause i • but the plaintiff was there . excuSed froM non-compliande for the foIloWing reasonS stated: • in a- head-'note iii that case : "Wheie . a claim-for daMages for arniS-take in transinission of a telegram was' iiresented in Writing immediately after the sender learned of the mistake, and suit . was ,brought shortly' thereafter, the claim was , preserited within •a reasonable' time, and.was: not barred by the 'sender's. , failute. to • present the claim :within . 60 'days after the Message • was filed for transraiSsion." . No' claim for damages' was ever presented to the telegraph company-by the , plaintiff in the instant case and the suit was not begun until September . 25, 1935. Ap-pellee relies upon the case' of Western, Union Telegraph Co. v . .Chappelle,-. supra, to excuse her failure to comply with the 60-day clause , set out above.. The exception there announced does . not apply in this case.. • Appellee testified , in part as follows : "I got the. telegram.or word that she.-Sent me message on Mon-day, : the:20th of:May. The 28th is when I got message that she sent telegram like it rsho.uld be. I . did not know
ARK.] 937; telegram was not right until the 28th of May and I knew it was not her fault." Appellee attempts to explain this admission by saying that she did not receive a copy of the telegrain Until September 12th, and that she did not : know its exact language prior to that date, and that she filed 'suit within.a reasenable time after being so advised. •Even sO, she admitted knowing what the mistake :was,-,and that she had that information not later than May 28th, and that she did not, within sixty days of that,date, present a claim or fle a suii. The essence of this case—the basis of it—is that the telegram, as delivered, did not contain the in-t formation which would have been lurnished had , it been correctly transmitted, to-wit: that her brother, waS d-ead and would be buried in Manchester on Priday :at . 2 p. Butshe admitted having ' knowledge of this error in trans: misSion—the knoWledge upon -whickthe claim W'ould have been based—as , early as May , 28th, and thereafter failed to present a claim as required by the sixty-day clause, and thus give the telegraph cempany an opportunity to investigate, which the Daugherty case, sitpra, said it was entitled to have for the reasons there stated. ' It follows, therefore, that the judgment mnst be reverSed, and, as the ease'has been hilly developed, it 'will be dismissed. It is Só ordered. –
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.