
    Western Union Telegraph Company v. Greer.
    
      (Knoxville.
    
    September Term, 1905.)
    1. TELEGRAPH COMPANIES. Stipulation respecting notice of claim for damages — doctrine re-affirmed.
    The holding of this court that a stipulation in a contract for the transmission of a telegram, exempting a telegraph company from liability for damages unless the claim is presented within sixty days after the message is sent, is reasonable and valid, is re-aflirmed.
    Cases cited and approved: Telegraph Co. v. Courtney, 113 Tenn., 482; Manier & Co. v. Telegraph Co., 94 Tenn., 442, and cases cited in the opinion.
    2. SAME. Same. Not applicable, when.
    But such stipulation is not applicable where the suit is commenced within the specified time under a writ or pleading which sets out the facts with sufficient fullness to call the attention of the company to the particular message and conduct ■ complained of.
    Cases cited and approved: Telegraph Co. v. Courtney, 113 Tenn., 482; Telegraph Co. v. Mellon, 96 Tenn., 66, and cases cited in opinion.
    3. SAME. Same. Applicable to actions for penalties.
    The stipulation in a contract for the transmission of a telegram, exempting a telegraph company from liability for damages or statutory penalties unless the claim is presented within sixty days after the message is filed for transmission, applies to actions for statutory penalties as well as for damages.
    Case cited and approved: Telegraph Co. v. Mellon, 96 Tenn., 66.
    4. SAME. Same. Binding upon infants.
    Such stipulations, being reasonable regulations of the business of telegraph companies, are binding upon infants, as well as adults, contracting therewith.
    
      FROM CLAIBORNE.
    Appeal in error from the Circuit Court of Claiborne County. — P. G. Fulkerson, Special Judge.
    George H. Fearons, Hughes & Hughes, and Shields, ■Cates & Mountcastle, for Telegraph Company.
    G. W. Montgomery, Jesse L. Rodgers" and John P. Davis, for Greer.
   Mr. Justice Neil

delivered the opinion of the Court.

This action was originally brought before a justice of the peace under a warrant stating the cause of action to be “for failure to promptly and properly, send and ■deliver a certain telegram.” There was a judgment rendered against the company by the justice of the peace, and from this judgment an appeal was prosecuted to the ■circuit court. In that court a judgment was rendered in favor of the plaintiff below for $200, and from this latter judgment the company prayed and obtained an appeal to this court.

The facts, so far as necessary to be stated, are as follows :

In January, 1905, the defendant in error, then a boy ■seventeen years old, left his father’s home in Claiborne county, tliis State, without his father’s knowledge or consent, and went thence to Louisville, Ky., and from that city to Decatur, Ill. When he reached Decatur he had only about $1 or $1.50 in his possession. He tried to obtain work, but could get nothing to do. He then went to the telegraph office and deposited a telegram, addressed to his uncle, “Bud” Greer, at New Tazewell, Tenn., the station nearest his father’s home. This message was as follows, viz.:

“Decatur, Ill.
“To Bud Greer, New Tazewell, Tennessee:
“Send me fifteen dollars. Can’t come home until I get it. See mama.
“Huston Greer.”

For the transmission of this message Huston Greer paid the company’s charge, fifty-nine cents. After he deposited the message he went to a hotel, where he. remained all night, and returned the next morning to the telegraph office for a reply, but received none. After he had paid the charge for the message and his hotel bill he had only ten cents left. With that he bought something to eat. After his money was all gone he went to-police headquarters, and told the officials in charge that he was out of money and had no place to stay. Thereupon he was admitted to the jail, where he remained and was- lodged and fed, and kindly treated for ten days. At the expiration of this time he received sufficient money to bear his'expenses, and was released from confinement and returned home. The money, however, was sent in response to a letter -which he wrote and mailed tolls father while he was in jail. The telegram, when it reaches the sendee, read “Decatur, Ala.,” instead of “Decatur, Ill.” A second telegram, sent the next day, met the same fate. The result was that defendant in error’s home people were misled into believing that he was in Decatur, Ala., and made inquiries accordingly, the consequence of which was the ten days’ delay complained of.

The blank form upon which the message was written contained on its face a stipulation that the terms on the back of it were assented to. One of these terms was expressed in the following language: “The company will not he liable for damages or statutory penalty 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 present suit was not brought until after the sixty days had expired.

Sundry errorjs are assigned by the company as follows :

That the court erred (1) in refusing to withdraw from the jury all evidence concerning the payment of money by defendant in error’s father for the purpose of ascertaining his whereabouts; (2) in refusing to withdraw all evidence concerning the defendant in error’s having gone to jail in Decatur, Ill.; (3) in instructing the jury that defendant in error could recover for grief, disappointment, or other injury to his feelings; (4 and 5) in submitting to the jury the question of punitive damages; (6 and 7) in refusing to charge the jury, in accordance with the request of plaintiff in error, that the defendant in error, although a minor, was bound by the sixty days’ clause above set out; (8) in refusing to set aside the verdict on the ground that it was excessive, evincing partiality, prejudice, or passion.

In the view we take of the case, it is necessary that we consider only the sixth and seventh assignments.

In this State it has been held that the sixty, days’ clause is a reasonable and valid one. Manier v. Telegraph Co., 94 Tenn., 446, 29 S. W., 732; Tel. Co. v. Courtney, 113 Tenn., 482, 82 S. W., 484. And the great weight of authority elsewhere is to the same effect. Albers v. Telegraph Co. (Iowa), 66 N. W., 1040; Russell v. Telegraph Co. (Kan.), 45 Pac., 598; Webbe v. Telegraph Co., 64 Ill. App., 331; Telegraph Co. v. Meredith, 95 Ind., 93; Tel. Co. v. Jones, 95 Ind., 228, 48 Am. Rep., 713; Telegraph Co. v. McKibben (Ind. Sup.), 14 N. E., 894; Telegraph Co. v. Yopst (Ind.), 20 N. E., 222, 3 L. R. A., 224; Lester v. Telegraph Co. (Tex. Sup.), 19 S. W., 256; Hill v. Telegraph Co. (Ga.), 11 S. E., 874, 21 Am. St. Rep., 166; Telegraph Co. v. Waxelbaum (Ga.), 39 S. E., 443, 56 L. R. A., 741, 742; Telegraph Co. v. Daugherty, 54 Ark., 221, 15 S. W., 468, 11 L. R. A., 102, 26 Am. St. Rep., 33; Telegraph Co. v. Phillips (Tex. Civ. App.), 21 S. W., 638; Smith-Frazier Boot & Shoe Co. v. Telegraph Co., 49 Mo. App., 99; Kirby v. Telegraph Co., 7 S. D., 623, 65 N. W., 37, 30 L. R. A., 612, 621, 624, 46 Am. St. Rep., 765. But the regulation is not applicable when the suit is commenced within the specified time, under a writ or pleading which sets out the facts with sufficient fullness to call the attention of the company to the particular message and conduct complained of. Telegraph Co. v. Courtney, supra; Telegraph Co. v. Mellon, 96 Tenn., 66, 33 S. W., 725. And see Telegraph Co. v. Trumbull (Ind. App.), 27 N. E., 313; Telegraph Co. v. Karr (Tex. Civ. App.), 24 S. W., 302; Telegraph Co. v. Ferguson (Tex. Civ. App.), 27 S. W., 1048. The principle underlying the cases supporting the rule is that the nature of a telegraph company’s business requires it to receive and transmit thousands of messages within a comparatively brief space of time. Many of the particulars concerning these transactions are necessarily of a temporary and fleeting nature, and it is just that an opportunity should he given it to inquire into the facts and circumstances attending a mistake in a message, or delay in delivery, while the matter is still within the memory of witnesses. Telegraph Co. v. Mellon, supra; Kirby v. Telegraph Co., supra (opinion of Fuller, J.). The reason applies as well where the suit is for a statutory penalty as where it is directly upon the contract. Telegraph Co. v. Mellon, supra; Gray v. Telegraph Co. (Ga.), 13 S. E., 562, 14 L. R. A., 95, 27 Am. St. Rep., 259; Kirby v. Telegraph Co., supra; Telegraph Co. v. Yopst, supra; Telegraph Co. v. Meredith, supra; Telegraph Co. v. Jones, supra; Albers v. Telegraph Co., supra; Montgomery v. Telegraph Co., 50 Mo. App., 591; Kendall v. Telegraph, Co., 56 Mo. App., 192. And it is the sanie whether the transaction be with an infant or with an adnlt. If a contract should be made by an infant with a telegraph company, under such circumstances as appear in the present case, such contract would he for necessaries and binding upon him. He could not sue upon the contract and repudiate part of it. If the suit should be regarded as brought for the recovery of a penalty, or for damages in the nature of a statutory penalty, the result must he the same, since it has been held in this State that the sixty days’ clause applies in such cases (Tel. Go. v. Mellon, supra); it being regarded as a reasonable regulation of the business. Resting on the basis it does, no reason is apparent why a minor should be excused from compliance with this regulation any more than an adult. Such persons must generally depend upon adult relatives or friends for the protection of their rights, and where the law makes no saving or exception in their favor the court can make none. Without doubt, owing to the great lapse of time and loss of evidence, the evils intended to be provided against by the rule would be very greatly intensified by establishing an exception in favor of persons under age and permitting them to sue after attaining their majority. Conceding that we have power to ingraft this exception upon the rule, the serious evils that would result from so doing would far outnumber and outweigh the few instances in which the rights of infants against telegraph companies for breach of duty would be lost by tbe failure of relative or friends to present tbeir claims for them.

The point has been ruled in the same way as to infants in respect of contractual limitations in insurance policies. Sugg v. Travelers Ins. Co., 9 S. W., 676, 1 L. R. A., 847; Mead v. Ins. Co., 64 L. R. A., 79, 75 Pac., 475; O’Laughlin v. Union Central Ins. Co., 3 McCrary, 543, 11 Fed., 280.

The sixth and seventh assignments having been sustained, the judgment must be reversed.  