Lavelle v. Western Union Telegraph Co.

Kirby, J., (after stating the facts). It is insisted that appellant was not bound by the printed condition upon the back of the message, requiring that the claim for damages should be presented within sixty days from its transmission, since she had no knowledge of, and did not consent to, it. It is no longer questioned that damages for mental anguish may be recovered by the one suffering it, either the person to whom the message was addressed or by whom it was caused to be sent. 3 Sutherland, Damages, § 975. John Lavelle, the husband, was appellant’s agent, with authority to send or have the message sent to her brother, and he dictated it as desired to the assistant operator, who at his request wrote it out on the usual telegraph blank containing the condition and then read it over to him for his approval. The second message was sent likewise. If the husband had written the message himself, he would doubtless have used the customary telegraph blank, and without doubt he had the authority to do so, and the operator in writing the message at his request was the agent of the sender, and not of the company. It is not contended that there was any fraud or concealment practiced upon the husband at the time the message was sent, but only that the actual message, as dictated by and written for him, was read over without the printed conditions upon the back of the blank upon which it was written being called to his attention. Appellant’s husband, in thus sending the message, authorized the writing of it upon the blank as it was written, and the fact that his attention was not called to the printed condi■tions on the back thereof, and they were not read over to him at the time the dictated message was read for his approval, does not show any fraud or concealment upon the part of the operator by which he was in any way misled. It has often been held that the stipulation for notice of a claim for damages within sixty days from the transmission of the message is reasonable, and the company can require messages sent subject to it and refuse to send them otherwise, and the husband, plaintiff’s agent, having authority to write the message himself and preferring to do it by the hand of the operator under his direction, bound her thereby to the same extent as if he had himself written and signed the message upon the blank upon which it was written. Western Union Tel. Co. v. Dougherty, 54 Ark. 221; Western Union Tel. Co. v. Moxley, 80 Ark. 554; Western Union Tel. Co. v. Prevatt, 149 Ala. 617, 43 So. 106; Western Union Tel. Co. v. Benson, (Ala.) 48 So. 712; Gulf, C. & S. F. Ry. Co. v. Geer, 24 S. W. (Tex.) 86. The sendee of the messages received both of them more than thirty days before the expiration of the sixty-day limit, and there was' plenty of time after their delivery to comply with this reasonable stipulation. There being no dispute as to facts, the verdict was properly directed. The judgment, is affirmed.