Telegraph Co. v. Mellon. Virginia. In this State the obligation rests upon them for the correct transmission and faithful delivery of messages under the statute, as we have seen, as it does upon inn keepers, common carriers, and the like upon whom legal duties rest, resulting from their occupation and profession, and who owe a duty to the public irrespective of their engagements in particular instances. In Virignia, a telegraph company cannot refuse to make the contract with the sender without violating a penal statute, and if they are under obligations, which they cannot avoid, to send every dispatch which is offered, how can their obligation be said to rest upon the contract alone? Their obligations, under the laws of this State, are such that they are compelled to make the contract; and when it is made, by receiving the message and the price for its transmission, according to their own regulations, they are under obligations to send it, both under their contract to send it and under the law which makes it their duty to send it." Heywood v. McCracken, 2 How. 608. In Indiana there is a statute providing that telegraph companies shall be liable for special damages occasioned by failure or negligence of their operators or servants in receiving, copying, transmitting or delivering dispatches. It was held by the Supreme Court of Indiana that, under this statute, a telegraph company was liable for special damages sustained, although the party injured was neither the sender nor addressee of the message. W. U. Telegraph Co. v. McKibben, 114 Ind. 511; W. U. Telegraph Co. v. Fenton, 52 Ind. 1. So we think that, under our statute allowing a right of action to the party aggrieved, it is not necessary that any contractual relation should exist, but that the company is liable for a breach of its statutory duty independent of any contract. The breach of the statute in failing to deliver the message entitled the party aggrieved to, at least, nominal damages, to which may be added compensatory Telegraph Co. v. Mellon. or exemplary damages, in the discretion of the jury. The party aggrieved is the party who, upon the face of the message, appears to be the beneficiary-in this case, the plaintiff, John Mellon. The demurrer was, therefore, properly overruled. The tenth assignment of error is that the court erred in refusing the following request, viz.: "The contract made by the telegraph company in this case stipulated that any claim for damages should be presented to the company in writing within sixty days from the sending of the message. This is a valid agreement, and binding upon all parties; but it is insisted by plaintiff that, inasmuch as he did not receive the message, as it was not delivered, he had no notice of the stipulation, and, therefore, is not bound by it, he having brought the suit within sixty days from the time he received notice that such a telegram had been Upon this question, I charge you that if the telegram was sent on July 16, and the plaintiff received notice of that fact on the twenty-sixth of that month, then it was his duty to file his claim in writing with the company, according to the terms of the stipulation, within the sixty days provided for, if he had ample time to do so after such notice," etc. sent. The record discloses that the telegram in question, sent from Duncansville, Tex., on July 16, 1893, has never been delivered either to the plaintiff or to Frank Hamlet, the addressee. Plaintiff, however, learning that his son was sick, went to Duncanvsille about July 26, and there learned for the first time that such a message had been filed for transmission. Now, the insistence of the defendant's counsel, as embodied in this instruction, is that notwithstanding the message containing the sixty day stipulation had never been delivered to Frank Hamlet, nor seen by plaintiff, plaintiff, having been advised in Texas that such a message had been sent, was bound to file his claim for damages before the expiration of sixty days from Telegraph Co. v. Mellon. the sending of the message. We cannot concur in this contention. It was held by this court in Manier v. Western Union Telegraph Co., 94 Tenn. 442, that a contract exempting a telegraph company from liability unless the claim for damages resulting from negligence in transmission of message shall be made within sixty days after the message is sent, is a valid and reasonable stipulation. "It is a reasonable requirement, enabling the company to inquire into the nature and circumstances of a mistake in or of the delay or non-delivery of a message while the matter is still within the memory of witnesses." Sherrill v. Tele"It is not a statute of limitagraph Co., 109 N. C. 527. tions, restricting the time within which action may be brought." Id. But says the court in Johnson v. Western Union Telegraph Co., 33 Fed. Rep. 362, "there are, however, circumstances in which the stipulation for sixty days would be unreasonable; as, for instance, where a prepaid message was never delivered." The court goes on to say that a stipulation of thirty days after the message is sent would be unreasonable in such case, for the failure of the company to deliver it would deprive the plaintiff, perhaps, of all notice that a telegram had been sent to him, and the company could prevent all redress by holding the telegram until after the term within which it is stipulated the demand on them must be made. If, therefore, the action was begun within sixty days after the knowledge by the plaintiff of the failure to deliver the message, it would be such compliance with the stipulation as could be required in a case where the message was not delivered at all. Sherrill v. Telegraph Co., 109 N. C. 527. The plaintiff made no demand before suit brought, but the general rule that the commencement of an action is equivalent to a demand applies to cases of this kind. Thompson on the Law of Electricity, sec. 256. Telegraph Co. v. Nagle & Winn. These authorities are in accord with our own case of Glenn & Son v. Southern Express Co., 86 Tenn. 594. In that case it was held that a stipulation in a receipt that the express company should not be liable for money lost by its default, unless claim therefor is made in writing at its office within thirty days after its delivery to the company, is reasonable and valid; but, where the failure to make the claim as required by such stipulation occurs without fault or negligence of the parties entitled to the money, then such failure will be excused, and will not prevent a recovery for the loss. We are, therefore, of the opinion the instruction asked was properly refused. [The portion of the opinion here omitted relates to amount of damages and competency of evidence.] For the reasons indicated the judgment is reversed, and the cause remanded for a new trial. WESTERN UNION TELEGRAPH COMPANY V. NAGLE & WINN. Texas Court of Civil Appeals, Nov. 13, 1895, (11 Civ. App. 539.) FAILURE TO TRANSMIT TELEGRAM-NOTICE OF IMPORTANCE-DAMAGES. Telegram in words, "Kammerer renews orders," followed by further words in cipher, held, to sufficiently indicate the importance of prompt delivery, especially when taken in connection with the circumstances that the company's manager at the initial office knew the business of the sender and addressee, who were partners; also knew that they were in the habit of corresponding with Kammerer by telegraph; and assumed that the message related to the business in which plaintiffs Telegraph Co. v. Nagle & Winn. were engaged; and had also been generally directed to deliver their telegrams promptly. The stipulation with respect to repetition of messages usually contained in telegraph blanks does not relieve the company from liability for the consequences of its own negligence. Loss of prospective profits, held, in the given case, to be a proper element of damages. Cases of this series cited in opinion, appearing in bold faced type: Daniel v. W. U. Tel. Co., vol. 1, p. 650; W. U. Tel. Co. v. Adams, vol. 3, p. 768; W. U. Tel. Co. v. Edsall, vol. 1, p. 715; W. U. Tel. Co. v. Sheffield, vol. 2, p. 802; W. U. Tel. Co. v. Blanchard, vol. 1, p. 404; Postal Tel. Cable Co. v. Lathrop, vol. 3, p. 630; Manville v. W. U. Tel. Co., vol. 1, p. 92; Hadley v. W. U. Tel. Co., vol. 2, p. 542. APPEAL by defendant from judgment of Travis County Court. Walton & Hill and George Fearons, for appellant. West & Cochran, for appellees. KEY, Associate Justice: In the court below appellees recovered a judgment against appellant for $500, the correctness of which depends, in the main, upon the liability of appellant for consequential damages for a failure to transmit and deliver, as it agreed to do, the following telegram: AUSTIN, Nov. 13, 1893. To N. J. Nagle, c | o W. J. Crow, Henderson, Texas : Kammerer renews orders Blunt Confess Cowardice Alack Bluffing each Conclave Album Concise Alarming. [Signed], Jos. B. WINN. If this message had been received by N. J. Nagle, who was a member of the firm of Nagle & Winn and understood the cipher in which it was, in part, written, he would have understood it (as it was intended) to mean that E. P. Kammerer, a cotton buyer in Galveston, Texas, had submitted an offer, as, in fact, he had done, to purchase five hundred bales of cotton, of designated grades, and at |