the same fire visited the premises, bothof said Joseph Schmidt and D. F. Latimer, against the former of whom a disallowance was, and. to the lattl'r of whom an allowance is, recommended; that this variance is due to evidence submitted in the more recent hearing, warranting a concliIsion against said receivers, an.d identifying the fire in both cases as one incident. Wherefore, nlJ action having been taken upon said report No. 108, the master reconsiders it, in view of the said later evidence, an,d'recommends an allowance in compensationfor thA loss of Said Jose'ph Schmidt, while absent from thl! scene, in the measure of 20 tons Of millet, at $12 per ton, or $240, to be paid when he shall have executed a receipt to the receivers in full of all damages sustained."
The receivers excepted to the findings of the report, on the grounds that the facts did not establish a presumption of negligence against them; that the eIhimant was not entitled to recover the amount allowed him, the evidence not showing tha.t the alleged injuries were a legal basis for any recovery'by him; and that the evidence and reports, in the matter of the claim, show that the neglect of the claimant contributed to the allegedinjury. .:. . . W. W. H&we, for. receivers.
PARDJtEnT. The intervention is a claim for damages caused by a fire originating'from the railway locomotives operated bythe receivers. The evidence proves the of the fire as alleged by'the intervenor, and the damages8S allowed by the master, and there is no evidence in the record to rebut the presumption of negligence. If this .class of fire eIaims are to be resisted by. the receivers,their attention'iscalled to the case of Railroad 00. v. Benson, 5 S. W. Rep. 822. Let the exceptions be overruled, and the report be confirmed.
I '.·· · ,
(Oz"rcuit Oourt,S D. Georgia,
<" .· . " · ..
Tum. A on the, :blank on which messages are sent, had a provision that it would not be liable tor damages for errors or delays, unless the claim for the same was presented within 80 days after the message was sent. Held. that the provision was unreasonable and void,1 '" ,
Oll'-:-PREsENTATION OFOUI)( WITHIN LI)(-
At Law. Acti0nonthe' case. Motion to direct :the jury to return iVoerdict for defendaht.. John T. JohJ¥lton,plaintiff, sued the Westam'Union' Telegrapb Company, for damages for failure to deliver a message, in city court, Macon, Georgia; clQfendantremoved theisuit to the circuitco1ll't of the United States. 8teed;Jc and Shotrecker; forplaintift. Qigby &: DotlJiv, foridefendant:' ..
See Stiles v. Telegraph Co., (Ariz.) 15 Pac. Rep. 712,
JOIIlSSTON V. WESTERN UNION TEL. CO.
SPEER,· J . This brought to recover damage,;; claitl1ed ,fof the non-delivery of a half-rate telegraphic message. The sliit is brought by the receiver of the telegram. ·The printed. blank upon which the mei'sage was written by the sender contains the following printed stipulation: "This company transmits and delivers messages only on conditions Hmiting its liability, which have been assented to by the sender of the following message. Errors can be guarded against only by repeating a message back to the. sending station for comparison, and the company will not hold itself liable for errors or delays in transmission or delivery of unrepeated night messages sent at reduced rates, beyond a sum equal to ten tpe amount paid for transmission; nor in any case where the claim is not presented in writing within thirty days after sending the message. This is an unrepeated night message and is delivered by request of the sender. under the conditions named above. 1.'IIOS. T. ECKERT, General Manager. "NORVIN GREEN,President." The defendant company insists that it is entitled to a verdict by direction of the court, because no claim was presented to the company, within the time specified by the printed stipulation quoted. The elaborate and able argument of the learned counsel for the defendant renders it necessary to consider carefully the precedents cited as controlling the rights of the litigants before the court. To support the proposition that a telegraph company may limit its liability by a sti,lula.tion brought to the· knowledge of those who transmitmessages, the following cases are· cited: MacAndrews v. Telegraph Co·· Allen, Tel. Cas. 38; Redpath v. Telegraph Co., 112 Mass. 71; Grinnell v. Telegmph Co., 113 Mass. 299.; Ellis v. Telegraph (fo., Allen, Tel. Cas. 306; Young v. Tdegraph Co., Id. 708; Breese v. Telegraph. Co., Id. 663; De Rutte v. Telegraph Co., Id. 273; Passmore v. Telegraph Co.,78 Pa. St. 238; Harris v. 'telegraph Co., 9 Phila. 88; Wolf v. Telegraph Co., Allen, Tel. Cas. 463; Telegraph Co. v. (hrew, ld. 345; Camp v.Tdegraph Co., Id. 85; Manville \'. Telegm.ph Co., 37 Iowa, 214; Birney v. Telegraph Co., Allen, Tel. Cas. 195; Sweatland v. Telegraph Co., Id.471; Wann v. Telegm.ph Co., Id. 261; Telegraph Co. v. Gildersleve, Id. 390; Graham v. Telegraph Co., Id. 578; 'l'elegraph Co. v. Buchanan, 35 Ind. 429; Aiken v. Telegrnph Co., 5 Rich. (N. S.) 358; Schwartz v.Telegraph Co., 18 Hun, 157; Becker v. Telegraph Co., (Neb.) TN. W. Rep.868; Telegraph Co. v. NeiU, 57 Tex. 283; Baxterv. Telegraph Co., 37 U. C. Q. B. 470. For the proposition that the use of the blank upon which the tions and stipulations are printed, will charge the sender with notice, the defendant relies upon, Breese v. Telegrnph Co., Allen, Tel. Cas. 663; Youngv. Telegraph Co., Id. 708; Redpathv. Telegraph Co., 112 Ma,ss. 71. Griltnell v. Telegraph Co., 113 Mass. 299; Wolf v. Telegraph Co., Allen, Tel. Cas. 463; Becker v. Telegraph Co., (Neb.) 7 N. W. Rep. 8M;, Tdegraph Co. v. Chreto, Allen, Tel. Cas; 345; Sweatland v. Telegraph Co., Id. 471; Schwartz v. Telegraph Co., 18 Hun, 157; Telegraph Co. v. Neill, 57 Tex 283. To show thatit is competent and for a telegraph ·cbmpahY ·to incorpora.te in. the blank a stipulation requiring claims for losseS to be
to within 30 days the counsel cited and discussed the following cases: Gray, Tel. 62; Heimann v. Tele!Jraph Co., 57 Wis. 562, 16 N. W. Rep. 32; note of same case in Chic. Law J. 269; &press Co. v. Caldwell, 21 Wall, 264. . And to show that the rule applies as well to the consignee as to the consignor, the following: Cole v. Telegraph lb., 8 Amer. & Eng. Corp. Cas. 45; Telegraph lb. v. Jones, Id. 47; Telegraph Co. v. Meredith, Id. 54 j Telegraph Co. v. Jones, 48 Amer. Rep. 713, 95 Ind. 228; Aiken v. Telegmph lb., 5 Rich. (N. S.) 358, same case in Digest of Cases, p. 50; Wolf v. Teler graph OJ.,. Allen, Tel. Cas. 463; Young v. Telegraph OJ., Id. 708. . It is not to be denied that these authorities tend to sustain the several pr()positions pf the defendant. On. the other hand, it is insisted, that is a suit in the state court Qrought against a foreign corporation doingl>Usjpess in Georgia, and removed under the act of congress into this court, and,that the question debated must be determined with close regardtQ the policy of the law as outlilled by statute, and. decided by the cQurt of htst resort in this state.. It is true that the positive local statthe construing them in a state where a federal court forms a rule by which it is governed in civil actions at has GOII\Inon law, where such actions do not arise under the laws oftha United States. Li'VingsWn v. Moore, 7 Pet. 469; Penn·ington v. (Jibson, 16 How. 69. This rule, however, is not applicable when the suit is between citizens of different states, and the question in dispute is one of general jurisprudence. In, such cases the parties are entitled to the independent judgment of the federal court. Railroad OJ. v. Lockwood, 17 Wall. 357; (JhicaiJo v. Robbins, 2 Black, 418; Railroad' Co. Bank, 102 U. S. 14; JIough v. Railroad 00.,100 U. S. 213; Railroad lb. v. Myrick, 107 U. S. 109, 1 Sup. Ct. Rep. 425; Burgess v. Seligman, 107 U. S. 20, 2 Sup. Ct. Rep'-1O; Insurance OJ. v. Broughton, 109 U. S. 121, 3 Sup. Rep. 99. We are remitted then, so far as decided cases will control, in the deof this question to those decisions upon this much mooted which are entitled to the highest consideration. The question is, can a company by special contra'Ct limit its common-law liability, and can it stipulate for exemption from the consequences of its own or its servants' negligence? In Hart v. Railroad Co., 112 U. S. 338, 5, Sup. Ot. Rep. 151, the snpreme court of the United States quote with ap'proval the propositions announced in Railroad Co. v. Lockwood, 17 Wall. 357; p.nd Express Co. v. Caldwell, 21 Wall. 264. The principle dedupible from these Cllses, is that while by contract the corporation may in certidn limit its liability, the claim of the company for exemption from liability must rest upon the reasonableness and fairness of the stipulation to that purport in the contract; and this court, as it is bound tb do,i cheerfully adopts the wise and equitable conclusion thus announced. The supr(3Il1El court seems to- consider telegraph companies as standing upon a similar basis with common carriers, as to this question; and the cannot statute of Georgia (Code, 2068,) provides' that common limH their legal liability by any notice given either. by publication or by entry op ' . given or tickets sold, but may by express contract· .
JOHNSTON V. WESTERN UXION TEl·. CO.
This statute was not mentioned in the argument; but, whether controlling or not, it indicates the policy of this state, as do several decisions of its court of last resort. :Jlanchard v. Telegraph 00., 68 Ga. 299; Tef.e,. graph 00. v. Shatter, 71 Ga. 760; Same v. Fatman, 73 Ga. 285. Now, it is held that regulations which contravene the constitutional law or public policy of the place where they are set up are unreasonable. Bartlett v. Telegraph 00., 62 Me. 209-213; True v. Telegraph Co., 60 Me. 9-11; Telegraph Co. v. Graham, 1 Colo. 230; Telegraph 00. v. Reynold8, 77 Va. 173; Ellis v. Telegraph Co., 13 Allen, 226. Is a stipulation which has the effect to preclude from his right of action the person to whom a prepaid telegram is directed. and to whom it has never been delivered, no l11atter h()wgross the negligence of.the p,iJmpally maype, a reasonable regulation? In the opinion of this court it is clearly unreasonable, and, besides, contrary to general public policy. He his claim in writing, in 30 days from thetim(j the telegram is senti put the failure of company to deliver it. depriveshi rn , perhaps, of all P-A7 tice that a telegram has been sent to him. ,:How then can he be.expected of thejnjury to make a claim for damages when he may qe done him? If the stipulation is valid, the company can very readily q.efeatall!edress by holding the te1l3gramfor 30 days afterit is sent. Take this case: The plaintiff, assuming !'X gratia exempli his statements to be true, is a farmer who lives six mIles in the country; he has business negotiations important to him, but unimportant perhaps.to his correspondents in Omaha; he leaves his address at the telegraph office; he calls repeatedly for his telegram; he is informed there is nothing for him; the telegril.phcompany wires the Omaha firm that there isno such man as the plaintiff; they drop the lllatter; not receiving his telegram, he drops it; after the expiration of 30 days he discovers the injury done him. Would any court of justice hold that it would be reasonable under such circumstances to deny his right of action? . And yet if the SO-days stipulation is valid at all, it would be valid in that case. Such a stipulation would be especially unreasonable where the company, because of its monopoly, has the power to deprive the citizen of the means of telegraphic communication, unless he will subscribe to its regulations, howby deever unreasonable. I cannot recognize the doctrine as fendant's counsel, and the case must be determined upon the facts and other rules of law involved. .. ..
January 11, 1888.)
w: D. Mi880uri, w: D.
A mortgage purported to be signed by the female defendant by making her mark, and the certl1icate of acknowledgment was in due form, but such defendant denied .the execution, and,testi1ied that the justice, with whom she was well acquainted, called at her house and signed her name to the mortgage. and executed the certi1icate in her presence. but without addressing her or asking her consent. There was evidence to sbow that she had taken part in the negotiation for the loan,andshe admitted being present with her husband when the money was obtained. Held. that the evidence was not sufficient to impeach the execution of the mortgage.
In Equity. Bill to foreclose a This suit was brought by Samuel Mather against Elizabeth T. Jarel, the owner of tbe mortgaged properly, and her husband, John S. Jarel. BotsfOrd&-' Williams, for complainant. HarklesS' &- Burr, for defendants: , THAYER,J. This is a bill inequity to foreclose a mortgage on lands situated in Barton county, Missouri. The mortgaged premises belong, to the defendant Mrs. Elizabeth T. Jarel,who is a married woman and the, wife of her co-defendant; John S. Jarel. Mrs. Jarel defends the action on the ground that she neither signed nor acknowledged the mortgage in question. There is no other defense to the bill by either defendant. Thejnortgage purports to have been signed by Mrs. Jarel by making hermark,and her signature thereto is attested by the justice before whom the mortgage purports'ter have been acknowledged. The certificate()f acknowledgment is iridue forJl1 oflaw and by the proper 'officer,but the contention is that the certificate is false, , In some states (as is well known) a certificate ot acknowledgment to a mortgage can only be impeached on the ground of fraud; unless fraud is showIdhe,certifieate is conclusive of the facts it asserts. . RU88ell v. TheologicalUnidri; 73 Ill. 337; Johnsron v. Wallace, 53 Miss. 338; and see note to Paxton v. Marshall, 18 Fed. Rep. 365, where the cases are bollated; . In bthci' jurisdictions (and notably in Missouri) a certificate of acknowledgment is regarded as prima facie evidence of the matters therein stated, and it may be contradicted and overthrown, although no fraud is established. Wannell v. Kern, 57 Mo. 478; Steffen v. Bauer, 70 Mo. 399. But even in those states where a certificate of may be overcome without proof of fraud, the rule is that the certificate is proof of a'high grade of the facts it asserts, and that it cannot be overthro*n except by proof that is clear, cogent, and convincing. Bohan v. CWJey, 5 Mo. App. 101; Biggers v. Building Co., 9 Mo. App. 210. And such is also the rule announced by the supreme court of the United States in Insurance Co. v. Nelson, 103 U. S. 548; Young v. Duvall, 109 U. S. ti73, 3 Sup. Ct. Rep. 415. A less stringent rule than the one last stated \vould render titles to real estate very insecure; therefore, public policy