Western Uninon Tel. Co. v. Lambert , 141 Miss. 580 ( 1926 )

This is an appeal from a judgment for damages alleged to have been sustained by the appellee because of delay by the appellant in delivering a telegram which it received at New Orleans, La., for transmission to the appellee at Monticello, Miss. The telegram was written by the sender on one of the appellant's regular blanks therefor, on which appears the following stipulation, which has been approved by the Interstate Commerce Commission:

"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 appellee himself filed no claim for damages with the appellant, but contends that a claim therefor was filed for him by the sender of a telegram. The only evidence on which this claim is based appears in a letter written to the sender of the telegram by the appellant's manager, at New Orleans, La., a few days after the sending of the telegram, which reads as follows:

The Western Union Telegraph Company.

"William A. Porteous, City Superintendent.

"New Orleans, La., October 17, 1923.

"Oliver H. Van Horn Company, Inc., 522-534 Camp Street, New Orleans, La.

Gentlemen: Referring to your letter of October 9, relative to handling of telegram of October 3, to Mr. J.W. Lambert, Monticello, Miss., we find that the message filed at 8:30 p.m., October 3, was not received in Monticello until 8:30 a.m., October 4, due to that office being closed. Our office at Monticello was unable to locate addressee on October 4, and delivery was not made until the following day. The delay, while very much regretted, was unavoidable under the circumstances. Yours very truly, [Signed] Wm. A. Porteous, City Superintendent."

It does not appear from this letter that either the sender or the sendee of the telegram intended to claim damages for the delay in its delivery, and, whatever else such notice must contain, it must at least convey the idea that damages will be complained of by the person aggrieved by the delay in the delivery of the telegram. We do not understand the case ofWestern Union Telegraph Co. v. Czizek, 264 U.S. 281, 44 S.Ct. 328, 68 L.Ed. 682, to hold otherwise, for the letter there written to the telegraph company by the sendee of the telegram, which had not been delivered, indicated that he intended to hold the company for damages therefor.

The judgment of the court will be reversed, and judgment for the appellant will be rendered here.

Reversed and judgment here.