W. Union Telegraph Co. v. Woods , 266 S.W. 179 ( 1924 )

The proposition of appellant in effect presents the point in view that appellees cannot excuse their failure to comply with the stipulation in the telegrams providing for the filing of claims in writing within 60 and 95 days upon the ground that that provision was waived by the conduct of the agent of the telegraph company. The limitation of liability, formally adopted and filed and approved by the Interstate Commerce Commission pursuant to the federal act, became the lawful condition upon which the messages were received and sent. It was not in the nature or legal statutes of a simple contract of the parties, subject to their will and abrogation, unaffected by public concern or law. Consequently the company could not waive the condition, and estoppel would be unavailing. Kerns v. W. U. Tel. Co. (Mo.App.) 198 S.W. 1132; W. U. Tel. Co. v. Esteve Bros. Co., 256 U.S. 566, 41 S. Ct. 584, 65 L. Ed. 1094; Georgia, F. A. R. Co., v. Blish Milling Co., 241 U.S. 190, 36 S. Ct. 541, 60 L. Ed. 948.

In the case of Esteve Bros. Co., supra, it is stated:

"The lawful rate having been established, the company was by the provisions of section 3 of the act to regulate commerce prohibited from granting to any one an undue preference or advantage over the public generally. For, as stated in Postal Telegraph-Cable Co. v. WarrenGodwin Lumber Co., supra (251 U.S.) 30, the `act of 1910 was designed to and did subject such companies as to their interstate business to the rule of equality and uniformity of rates.' If the general public upon paying the rate for an unrepeated message accepted substantially the risk of error involved in transmitting the message, the company could not, without granting an undue preference or advantage extend different treatment to the plaintiffs here. The limitation of liability was an inherent part of the rate. The company could no more depart from it than it could depart from the amount charged for the service rendered."

Further, as stated in the case of Blish Milling Co., supra, in speaking of a notice of claim in the shipment of goods:

"It is urged, however, that the carrier in making the misdelivery converted the flour and thus abandoned the contract. But the parties could not waive the terms of the contract under which the shipment was made pursuant to the federal act; nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed."

The judgment is reversed, and Judgment is here entered in favor of the appellant, with costs of the trial court and of appeal.