Western Union Tel. Co. v. Phillips , 2 Tex. Civ. App. 608 ( 1893 )

Upon the trial below the court instructed the jury, "that the sixty days within which to make demand by appellant for his damages would not begin to run against him until the message was delivered to him, or from the date when for the first time he learned, or by the exercise of reasonable diligence could have learned, that such message had been sent to him;" and the telegraph company complains in its ninth assignment at the giving of this charge.

We believe this charge of the court was erroneous. We do not, however, think that this limitation must in all cases date from the sending of the message; but where knowledge of the sending of the message is received by the plaintiff long enough before the expiration of the sixty days after it was sent to enable him, with reasonable diligence, to make claim for damages as called for in the contract, he would be required to do so within that time; and where the evidence makes it doubtful as to whether or not such reasonable time remained after such message was forwarded to enable this to be done, the question should be submitted to the jury under appropriate instruction.

In several cases where there was no conflict in the evidence, the courts of this State have held such stipulations in contracts of this kind to be reasonable, as a question of law (Telegraph Company v. Culberson, 79 Tex. 65; Lester v. Telegraph Company,84 Tex. 313); but we do not understand any of these cases to hold, that where a part or all of the time called for in the contract has expired before the injured party acquires knowledge of the fact that the telegram had been sent him, that the jury would not be authorized to find such stipulation to be unreasonable as applied to the facts of that particular case.

District Judge Spear, in a well reasoned opinion in the case of Johnson v. Western Union Telegraph Company, 33 Federal Reporter, 362, states the case of a plaintiff who is a farmer residing six miles in the country, and has business engagements important to him, but unimportant to his correspondent, in Omaha; he leaves his address at the telegraph office, and calls repeatedly for his telegram; is informed there is nothing for him; the telegraph company wires the Omaha firm that there is no such man as the plaintiff; they drop the matter; not receiving his telegram, he drops it; after the expiration of the time he discovers the injury done him; and under such circumstances holds, that this stipulation as to time in which the claim for damages should be presented would be unreasonable, and with this reasoning we concur. See Thomp. on Electricity, sec. 294.

It has, however, been held by the St. Louis Court of Appeals, that where the whole time has not elapsed before knowledge is received, that it then becomes a question as to whether or not, under all the circumstances, sufficient time remains. Thomp. on Law of Electricity, secs. 250, 255. This decision seems to us also to be sound.

In a number of cases in this State it has been held, that the reasonableness of similar provisions in a contract of this kind with a common carrier for the shipment of live stock is a question for the decision of the jury under the circumstances of the particular case. Railway v. Childers, 1 Texas Civ. App. 302[1 Tex. Civ. App. 302].

Where the time in which the claim for damage is to be presented is fixed by the contract, the court might well decide it to be reasonable, as in the cases referred to above; but where the injured party has been deprived of a portion of the time he should have had under his contract in which to make his claim, and the evidence raises the question as to whether or not the time that remained was reasonably sufficient to enable him to present his claim within the time called for therein, we think the issue should be submitted to the jury under appropriate instructions, to decide whether the contract was reasonable as applied to the facts of that particular case. For this error in the charge, the judgment of the court below must be reversed as to the Western Union Telegraph Company; and we believe no useful purpose could be subserved by a discussion of the other errors assigned by it, as they are not of a nature that will likely arise upon another trial.

The Gulf, Colorado Santa Fe Railway Company complains, (1) that inasmuch as it received the telegram at Purcell, in the Chickasaw Nation, to be transmitted to Ardmore in the same Nation, the jurisdiction of the Circuit and District Courts for the United States for the Northern District of Texas, the Western District of Arkansas, and the District of Kansas, alone have jurisdiction of this case as to it. The act of Congress relied upon to sustain this contention is as follows: "That the United States Circuit and District Courts for the Northern District of Texas, the Western District of Arkansas, and the District of Kansas, and such other courts as may be authorized by Congress, shall have, without reference to the amount in controversy, concurrent jurisdiction over all controversies arising between said Gulf, Colorado Santa Fe Railway Company and the nations and tribes through whose territory said railway shall be constructed. Said courts shall have like jurisdiction, without reference to the amount in controversy, over all controversies arising between the inhabitants of said nations or tribes and said railway company; and the civil jurisdiction of said courts is hereby extended within the limits of said Indian Territory, without distinction as to citizenship of the parties, so far as may be necessary to carry out the provisions of this act." Without considering the validity of this act of Congress in any of its features, we are of opinion that there is nothing therein which seeks to give exclusive jurisdiction to any of said courts, or to deprive any other court of any jurisdiction which it would otherwise have. It only givesconcurrent jurisdiction to the courts therein named.

Appellant also contends, that the courts of this State have the right to refuse to entertain jurisdiction of cases of this kind, and that upon principles of sound policy they should exercise this right. To support this view, the case of Morris v. Railway,78 Tex. 17, is strenuously relied upon. In that case it will be noted that both parties were nonresidents of this State. In this case the appellant is a Texas corporation, and we see no good reason why the courts of this State should refuse relief even to a nonresident against it in a meritorious case; but in this case it is by no means clear that appellee has lost his citizenship in this State. It is true, he is residing in the Indian Territory, but he went from this State, and he does not seem to have become a member of any of the Indian tribes by marriage, as in the Morris case. In the Morris case, the court below refused to entertain jurisdiction, and our Supreme Court sustained it in such refusal. In this case the court below assumed jurisdiction, and we see no good reason to question the validity of its judgment on account thereof. Should a citizen of some other State or country seek to hold the Western Union Telegraph Company (it not being a Texas corporation) in our courts upon a cause of action of this kind arising outside of this State, the Morris case would go far toward holding that the proper course would be for our courts to refuse to entertain jurisdiction of such case.

The Gulf, Colorado Santa Fe Railway Company presents the proposition, "that unless the cause of action is recognized by the State or country where the wrongful act or omission occurred, no cause of action can be maintained thereon in this State, for in such case no cause of action exists;" and contends, that because the courts of the Chickasaw Nation can afford no redress in cases of this kind, appellee has no remedy anywhere. Appellee's right of action arose as well out of the contract made by said appellant to transmit and deliver said message, as it did out of the obligation incumbent upon it in the performance of its duties to the public, on receipt of the message, to transmit and deliver it with dispatch. We do not understand from the statement of facts that contracts of this kind are illegal in the Chickasaw Nation, in the sense of being prohibited by its laws; but the evidence only goes to the extent of showing that its courts have not been authorized to afford a remedy in such cases. If we should hold this contract illegal according to the laws of that Nation, we would, upon the same evidence, be required to hold all contracts made therein for the payment of money or the performance of obligations, except in a few specified cases, illegal. We believe that this has never been regarded as the law applicable to ordinary contracts made in that country, and we would not feel authorized in so holding, except upon the clearest convictions of its correctness.

In 2 Kent's Commentaries, 13 ed., 462, it is said: "Remedies upon contracts and their incidents are regulated and pursued according to the law of the place where the action is instituted, and the lex loci has no application. The lex loci acts upon the right; the lex fori on the remedy." This we understand to be the generally accepted doctrine. If then it be conceded that the laws of the Chickasaw Nation have application to others than its citizens, can it be said that the mere failure of their courts to be authorized to afford a remedy in such cases will deprive the injured party, in case of violation of a contract made therein, of all remedy everywhere? We believe not, and that in such cases the injured party can enforce his rights according to the remedies provided by the country where the defendant may be found.

But if we treat this case as sounding purely in tort, we are not prepared to hold that the position of appellant is well taken, although the cases of Carter v. Goode, 50 Arkansas, 156, and Holland v. Park, 7 Tennessee (Peck), 151, would seem to go far in this direction. We believe the most that can be said from the record in this case is, that the laws of the Chickasaw Nation fail to authorize its courts to furnish a remedy in such cases, and do not go to the extent of making it lawful for persons to be guilty of negligence in the performance of a duty imposed upon them by law therein.

In Willis v. Railway, 61 Tex. 433, it is said: "The rules governing suits arising out of torts committed in a locality other than the government where the redress is sought are about these, as deduced from the authorities upon the subject: Where the action is transitory, and is based on personal injuries recognized as such by universal law, the suit may be brought wherever the aggressor is found, irrespective of the provisions of the local law, or whether there be any law at all in force at the place where the wrong was committed." Citing Rorer on Interstate Law, 154, 155. Without approving this statement of the law to the extent of holding that a cause of action in such cases would exist irrespective of the provisions of the local law, if the local law changed what is termed the universal law and made the act complained of lawful in that jurisdiction, we believe the rule laid down to be sound in cases where there is a simple failure to provide a remedy, without making the act lawful.

The courts of this State have held, that a plaintiff in cases of this kind has a right of action under what may be termed general or universal law, and that the measure of damages under such law is that administered in the court below; and we are of opinion, that inasmuch as it is not shown by the record that parties living in the Indian Territory are prohibited by the laws of that country from seeking relief, provided they can find the defendant in a jurisdiction which affords a remedy in such cases, and inasmuch as the appellant is a Texas corporation, and inasmuch as the contract with which it identified itself by receiving and undertaking to transmit and deliver the message was entered into by its connecting line in this State, we believe that our courts should not withhold redress for its violation.

As we find no error in any of the assignments interposed by the Gulf, Colorado Santa Fe Railway Company, we are of opinion that the judgment against it for $1000 should be affirmed, provided appellee, within thirty days, shall file in this court a release of all claim against the Western Union Telegraph Company, and dismiss this suit as to it; otherwise, the judgment of the court below must be reversed and remanded as to both appellants on account of the error committed as to the telegraph company. We do not wish to be understood as approving the practice adopted by the jury in attempting to apportion the damage between the defendants, as was done in this case; but we believe the Gulf, Colorado Santa Fe Railway Company is in no position to complain of this, nor has it attempted to do so.

A motion for rehearing was overruled; and appellee having filed a remittitur as to the Western Union Telegraph Company, in compliance with the opinion, the judgment as to it was reversed and case dismissed, and affirmed as to appellant the Gulf, Colorado Santa Fe Railway Company.