Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-10-23

that defendant delivered III message to
r. J. Barnes on the Dist day Of February;
that said Barnes resid"i two or three
miles from Lovelock, in lhe country; that
the manager and messenger of the defend
ant We're ignorant of his location or the
pronar place to deliver said message, and
ar'rr.Hg ,od faith and diligence in it's
effort IL deliver sal messrge on the day
1t was received; that the injury of the
plaintiff at Battle Mountain was caused
by his own criminal misconduct, care
lessness and negligence The answer al
so sets up certain contract and alleges
its execution by both parties. The con-
tract was printed on the back of the mes
sage delivered by the plaintiff to the de-
fendant and so far as it is claimed to be
material in this case it is as follows:
ITO guard against mistakes or delays,
the sender of a message should order it
repeated, that is, telegraphed back to the
Original Office for comparison. For this,
"one-half the regular rate is charged in
addition. It is agreed between the send
"er of this message and this company
that said company shall not be liable for
"mistaheS or delays in the transmission
"Or delivery, or uOn-delivery of any an
repeated message whether happening by
the neglect of its servants or otherwise
beyond the amount received for sending
"Ih . same x < =
on the face of the blank form is the
following: Send the following message
"subjcct to the terms on the back hereof,
which are hereby agreed to- Immedi
! ately below this the telegram in question
was written by the operator and signed
by the plaintiff.
The jury returned verdict for the
plaintiff for the sum of $l25900 damages,
! and judgment was entered accordingly
| This appeal is taken from the judgment
and from The order Of the court d4nying
| defendants motion for new trial.
NEGLIGENCE. Counsel for appellant
| contends that there was no unreasonable
! delay i'll delivering the message to T. J.
| Barnes at LOvelock: that there was no
negligence on the part of the appel
| with respect thereto. Counsel for resi- =
| dent contends, that there was gross n .
! ligence in delaying the delivery of said
/ message 10 7. !. Barnes alte.' it was re-
ceived by the appellant at its Lovelock
| office. Counsel have reviewed the evil
dr"ro fully and argued at great length in
! support of their respective conventions.
Without reviewing the evidence, in this
| opinion. upon the many facts disclosed
hearing upon the issue of negligence it is
| sufficient to say, that there is substantial
conflict in the evidence with respect
! thereto, aud evidence sufficient to sup
port either contention and that. therefore
this court would not be Justified in intci-
! tpling with the verdict OF ,he jury or the
finding of The court in favor of The plain
| tiff on this issue.
THE CONTRACT OR STIPULATION
Counsel for appellant points out the fol.
| lowing portion of the contract set up il
its answer, as being that part on which i
relied in the court below and relics OF
this appeal, tO-wit:
1T is agreed between the sender of thi,
message and this company, that sale
company shall not he liable for mistake,
"or delays in the transmission o. d,.liv
"ery, or for nOn-deliVery of any unrepeat
led message whether happening by tn,
neglect of its servants or otherwise be
"yond the amount received for sendin.
the same"
The telegram in question was an un
| repeated message.
The contention of appellants cOunSe
with respect 10 the contract is: that il i
reasonable and valid: that the messag
| Il
subject TO lis conditions: that it super
seeded any legal duty of the defendant il
regard to the transmission and delivery
that the contract was intended to modif,
the legal duties and liabilities of the dc
tendant and that the plaintiff knew h
had contracted against the recovery Q
damages i'll case Of delay or non-deliv
cry, if the message was not repeated
. | Upon the other hand counsel for re
spondent maintains that any stipulation
restricting the liability of the compan
, for negligence is against public polio,
and void; that the stipulation RESTRICTING
} liability for an unrepeated messagei is un
reasonable and void where the complain
J is not for mistake or errors in the mes
sage but for delay or failure to deliver tn
t message. The discussion with respect +
the validity of the contract in question
has taken a wide range. Counsel hav
exhibited great industry in collecting an
reviewing the authorities in support c
= their respective contentious.
We will not follow them through thei
exhau>,' " ""Gnments, and extended re
', view of nl.uI> he decided cases rela
ing to questions which have ar.>nn i
other courts with respect t" the validit
of these stipulations on Geographic mes
sages, but which questions are not il
: volved in this case. The defendant whe
5 it received said message from the plain