must be made within a specified short limit of time.30 If the time allowed is reasonable such a provision is valid.31 Aside from the restrictions imposed on contracts for interstate carriage by the Interstate Commerce Act, the carrier may waive the benefit of limitations in its contract of carriage limiting the time for making claim, and such a waiver may be implied from conduct as well as from express language; for instance, inducing the shipper to delay making a claim within the stipulated time.32 And any other conduct of the carrier the 30 The Uniform bill of lading in use prior to 1919 provided, "Claims for loss, damage, or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after the delivery of the property, or in case of failure to make the delivery within four months after a reasonable time for delivery has elapsed. Unless claims are so made, the carrier shall not be liable." The bills of lading prescribed by the Interstate Commerce Commission in 1919 alter this provision. The domestic bill provides: "Except where the loss, damage, or injury complained of is due to delay or damage while being loaded or unloaded or damage in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within six months after delivery of the property (or in case of export traffic within nine months after delivery at port of export), or in case of failure to make delivery, then within six months (or nine months in case of export traffic) after a reasonable time for delivery has elapsed. Suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or in case of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed." The export bill allows nine months for making claims. 31 Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; Missouri, etc., Ry. Co. v. Harriman, 227 U. S. 657, 57 L. Ed. 690, 33 Sup. Ct. 397; Keeney v. Chicago, etc., R. Co. 183 Iowa, 522, 167 N. W. 475; Metz Co. v. Boston & Maine R., 227 Mass. 307, 116 N. E. 475; Spada v. Pennsylvania R. Co., 86 N. J. L. 187, 92 Atl. 379; Murray v. Atlantic Coast Line, 108 S. Car. 88, 93 S. E. 387; Houston, etc., Ry. Co. v. Houston Packing Co. (Tex. Civ. App.), 203 S. W. 1140. Numerous decisions as to what limit of time is reasonable are collected in L. R. A., 1916 D. pages 335-352. That of four months established in the old uniform bill of lading in general use until 1919 has been upheld. Georgia, etc., R. v. Blish Milling Co., 241 U. S. 190, 60 L. Ed. 948, 36 S. Ct. 541; Higgins v. Boston & Maine R., 78 N. H. 609, 102 Atl. 533. See also Chesapeake, etc., R. v. MeLaughlin, 242 U. S. 142, 61 L. Ed. 207, 37 S. Ct. 40. 32 St. Louis, etc., Ry. Co. v. Jacobs, 70 Ark. 401, 68 S. W. 248; Soper v. Pontiac, etc., R. Co., 113 Mich. 443, 71 N. W. 853; Banks v. Pennsylvania R. Co., 111 Minn. 48, 126 N. W. 410; Merrill v. American Express Co., 62 N. H. 514; Hinkle v. Southern Ry. Co., 126 N. C. 932, 36 S. E. 348, 78 Am. St. Rep. 685; St. Louis, etc., R. Co. v. James, 36 Okla. 196, 128 Pac. 279; Eckert v. Pennsylvania R. Co., 211 Pa. 267, 60 Atl. 781, 107 Am. St. Rep. 571. natural effect of which is to induce the shipper to fail to make a claim or bring suit within the stipulated time, as he might otherwise have done, is a waiver. 33 It has been held further that even though the time limited has expired so that the shipper's right has been lost, it will be revived by any conduct on the part of the carrier which treats the claim as still valid. 34 Though a few decisions distinguish between an alleged waiver before the expiration of the time fixed in the contract and conduct after the expiration of that time,35 the analogy of new promises to pay a debt barred by the Statute of Limitations is so strong that there seems no reason why the same exception to general principles should not be applied here, but it should be remembered that one of the requirements in regard to the Statute of Limitations is that the facts must disclose what clearly amounts to a new promise, if not in express language at least by implication. These principles have less frequent application than formerly, for now the right to waive conditions prior to their breach or to revive claims which have been lost by breach of condition is abolished, so far as contracts of interstate carriage are concerned, by the Interstate Commerce Acts.36 33 Wabash Ry. Co. v. Brown, 152 Ill. 484, 39 N. E. Rep. 273; Soper v. Pontiac, etc., R. Co., 113 Mich. 443, 71 N. W. 853; Galveston, etc., Ry. Co. v. Silegman (Tex. Civ. App.), 23 S. W. 298; Norfolk, etc., Railway Co. v. Reeves, 97 Va. 284, 33 S. E. 606. 34 St. Louis, etc., R. Co. v. Grayson, 89 Ark. 154, 115 S. W. 933; Post v. Atlantic Coast Line R. Co., 138 Ga. 763, 76 S. E. 45; Hudson v. Northern Pac. Ry. Co., 92 Iowa, 231, 60 N. W. 608, 54 Am. St. Rep. 550; Peninsula Produce Exchange v. New York, etc., R. Co., 122 Md. 231, 89 Atl. 437; Wallace v. Lake Shore, etc., R. Co., 133 Mich. 633, 95 N. W. 750; McFall v. Wabash R. Co., 117 Mo. App. 477, 94 S. W. 570; Vencill v. Quincy, etc., R. Co., 132 Mo. App. 722, 112 S. W. 1030; A. C. Cheney Piano Co. v. New York, etc., Co., 85 N. Y. Misc. 157, affd. 166 N. Y. App. Div. 706; Isham v. Erie R. Co., 112 N. Y. App. Div. 612, 98 N. Y. S. 609, affd. without opinion 191 N. Y. 547, 85 N. E. 1111; Sauls-Baker Co. v. Atlantic Coast Line R. Co., 98 S. C. 300, 82 S. E. 418. See further for collection of cases on waiver of time in contracts of carriers, L. R. A. 1916 D. 1046, and note 1049. 35 Gamble-Robinson Co. v. Northern Pac. R. Co., 119 Minn. 40, 137 N. W. 19; Atlantic Coast Line v. Bryan, 109 Va. 523, 65 S. E. 30; Old Dominion Steamship Co. v. Flanary, 111 Va. 816, 69 S. E. 1107. 36 Phillips v. Grand Trunk Ry., 236 U. S. 662, 667, 59 L. Ed. 774, 35 Sup. Ct. 444. "The obligation of the carrier to adhere to the legal rate, to refund only what is permitted by law and to treat all shippers alike would have made it illegal for the carriers, either by silence or by express waiver, to preserve to the Phillips Company a right § 1113. Liability of carriers for their passengers' safety. The obligation of a carrier to a passenger for his safe carriage is usually dealt with as an obligation imposed by the law of torts rather than as one assumed by contract; and properly, for the obligation is wider than any that could be based on mutual assent. The carrier does not insure the passengers' safe carriage, but is liable only for negligence." The duty imposed is to use the utmost diligence or the highest degree of care.38 But how far the duty of the carrier in this respect differs from that of any one who for business purposes invites others on his premises may be questioned." Besides the duty of avoiding negligent misconduct, the carrier is under an absolute duty to protect his passengers from the misconduct of its servants or agents.40 The decisions are of action which the statute required should be asserted within a fixed period. To have one period of limitation where the complaint is filed before the Commission and the varying periods of limitation of the different States, where a suit was brought in a court of competent jurisdiction; or to permit a railroad company to plead the statute of limitations as against some and to waive it as against others would be to prefer some and discriminate against others in violation of the terms of the Commerce Act which forbids all devices by which such results may be accomplished. The prohibitions of the statute against unjust discrimination relate not only to inequality of charges and inequality of facilities, but also to the giving of preferences by means of consent judgments or the waiver of defences open to the carrier." See also Georgia &c. R. Co. v. Blish Milling Co., 241 U. S. 190, 197, 36 Sup. Ct. 541, 60 L. Ed. 948; Metz Co. v. Boston & Maine R., 227 Mass. 307, 116 N. E. 475. 37 Readhead v. Midland Railway Co., L. R. 2 Q. B. 412, 4 id. 379; The Oregon, 133 Fed. 609, 68 C. C. A. 603. 38 Numerous cases are collected in 2 Hutchinson, Carriers, §§ 895, 896. 39 See 31 Harv. L. Rev. 306. 40 In Dwinelle v. New York Cen. & Hud. R. Co., 120 N. Y. 117, 122, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611, the court said: “As we have seen, the defendant owed the plaintiff the duty to transport him to New York, and during its performance to care for his comfort and safety. The duty of protecting the personal safety of the passenger, and promoting by every reasonable means the accomplishment of his journey, is continuous, and embraces other attentions and services than the occasional service required in giving the passenger a seat or some temporary accommodation. Hence whatever is done by the carrier or its servants which interferes with or injures the health or strength or person of the traveller, or prevents the accomplishment of his journey in the most reasonable and speedy manner, is a violation of the carrier's contract, and he must be held responsible for it." To the same effect are the following: Pittsburg, Ft. W. & C. R. Co. v. Hinds, 53 Pa. 512, 91 Am. Dec. 224; Goddard v. Grand Trunk Ry. Co., 57 Me. 202, 214, 2 Am. Rep. 39; Chamberlain v. Chandler, 3 Mason, 242, 245, Fed. Cas. No. 2,575; Pendleton v. Kinsley, 3 Cliff. 416, 417, Fed. Cas. No. 10,922; often rested on the ground that the action of the servant or agent was within the scope of his employment,11 and in many cases this may be true, but when the act in question had no relation to the carrier's business and though occurring in the carrier's vehicle or station was due wholly to private interests or motives of the servant, the carrier's liability must be rested on the broader ground previously discussed in connection with innkeepers.42 The carrier must also use Bryant v. Rich, 106 Mass. 180, 188, 8 Am. Rep. 311; Chicago & Eastern R. Co. v. Flexman, 103 Ill. 546, 548, 42 Am. Rep. 33; So. Kan. Ry. Co. v. Rice, 38 Kan. 398, 16 Pac. 817, 5 Am. St. Rep. 766. 41 In Clancy v. Barker, 131 Fed. 161, 166, 66 C. C. A. 469, the court said: "In Dwinelle v. New York Central, etc., R. Co., 120 N. Y. 117, 126, 127, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611, the porter of a sleeping car, who had taken up a ticket of a passenger, was held to be acting within the scope of his employment when he struck the passenger during an altercation between them relative to the return of the ticket. "In Stewart v. Brooklyn, etc., R. Co., 90 N. Y. 588, 591, 43 Am. Rep. 185, the court declared the limit of the company's liability to be 'to protect the passenger against any injury arising from the negligence or wilful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger,' and held that a driver of a street car, who was also the conductor, and who beat a passenger in the car, was within the scope of his employment to carry the passenger safely when he committed the assault. "In Goddard v. Grand Trunk Railway, 57 Me. 202, 203, 2 Am. Rep. 39, a brakeman, who had authority to collect tickets, and who, after collecting one from a passenger, demanded another of him, and grossly insulted him because he declined to pay for his pas sage again, was held to have been acting within the scope of his employment, and the company was charged with the damages he inflicted. "So in Croaker v. Chicago & Northwestern Ry. Co., 36 Wis. 657, 673, 17 Am. Rep. 504, a conductor who kissed a passenger; in Pendleton v. Kinsley 3 Cliff. 416, 427, 428, Fed. Cas. No. 10,922, the clerk of a steamer who assaulted a passenger while trying to collect his fare; in Chicago & Eastern R. Co. v. Flexman, 103 Ill. 546, 42 Am. Rep. 33, a brakeman who struck a passenger because during a search for a lost watch he said he thought the brakeman had it; in Terre Haute & Indianapolis R. Co. v. Jackson, 81 Ind. 19, 22, a conductor or brakeman who drenched a passenger with water; in Campbell v. Palace Car Co., 42 Fed. 485, a porter of a sleeping car who made indecent proposals to a passenger; in Williams v. Pullman Palace Car Co., 40 La. Ann. 417, 421, 4 South. 85, 8 Am. St. Rep. 538, a porter of a Pullman car who assaulted a passenger; and in Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 24 L. R. A. 483, 41 Am. St. Rep. 440, the ticket taker and special policeman of a theatre, who, in endeavoring to sell the tickets to a customer, assaulted him-were all held to be, and undoubtedly were, acting within the scope of their various employments when they inflicted the injuries for which the defendants were made to pay." 42 See supra, § 1070. the same reasonable care to protect a passenger from injury by third persons, that is required of it in the general performance of its business. § 1114. Telegraph companies. Telegraph companies are not common carriers.43 Such a company is a public service corporation,44 but does not insure the success of the performance which it undertakes. The obligation implied or imposed is to use due care to transmit a message correctly,45 and to use such care to deliver messages with reasonable promptness.46 It is common for telegraph companies to attempt to limit their liabilities by provisions, on blanks furnished for messages, to the effect that unless the message is repeated (for which an additional charge is made), the company shall not be liable beyond the price received for sending the message. Such a stipulation is held valid, except for defaults due to willfulness or gross 43 Fowler v. Western Union Tel. Co., 80 Me. 381, 15 Atl. 29, 6 Am. St. Rep. 211; Grinnell v. Western Union Tel. Co., 113 Mass. 299, 301, 18 Am. Rep. 485; Birkett v. Western Union Tel. Co., 103 Mich. 361, 61 N. W. 645, 33 L. R. A. 404; Kiley v. Western Union Tel. Co., 109 N. Y. 231, 16 N. E. 75; Gillis v. Western Union Tel. Co., 61 Vt. 461, 463, 17 Atl. 736, 4 L. R. A. 611, 15 Am. St. Rep. 917. There are contrary decisions, but they often mean no more than that a telegraph company is under the duties of a public service corporation. The following decisions relate to telephone companies, but it is assumed or stated that the law regarding telegraph companies is the same. Central Union Telephone Co. v. Bradbury, 106 Ind. 1, 5 N. E. 721; Gwynn v. Citizens' Telephone Co., 69 S. C. 434, 48 S. E. 460, 67 L. R. A. 111; State v. Cumberland Tel. & Tel. Co., 114 Tenn. 194, 86 S. W. 390. By the Mississippi Constitution, telegraph companies are declared common carriers. Postal Tel. & Cable Co. v. Wells, 82 Miss. 733, 35 So. 190. 44 Western Union Tel. Co. v. Call Pub. Co., 181 U. S. 92, 45 L. Ed. 765, 21 Sup. Ct. 561; Chesapeake, etc., Tel. Co. v. Baltimore & O. Tel. Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167; Nebraska Telephone Co. v. State, 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113. It is so far engaged in interstate commerce as to be subject to federal regulation through the Interstate Commerce Commission. 36 U. S. Stat. 544, $7. 45 Primrose v. Western Union Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883; Breese v. U. S. Telegraph Co., 48 N. Y. 132, 8 Amer. Rep. 526; Pinckney v. Western Union Tel. Co., 19 S. C. 71, 45 Am. Rep. 765. 46 Western Union Tel. Co. v. Elliott, 131 Ky. 340, 115 S. W. 228, 22 L. R. A. (N. S.) 761; Fowler v. Western Union Tel. Co., 80 Me. 381, 15 Atl. 29, 6 Am. St. Rep. 211. |