Kirby v. Western Union Telegraph Co.

Citations

• 4 S.D. 105
• 55 N.W. 759
• 1893 S.D. LEXIS 50

Syllabus

<p>1. The statute law of this state (Sections 3881-3910, Comp. Laws) makes a telegraph company, which offers to the public to carry telegraphic messages, a common carrier of such messages.</p> <p>2. Such statutory provisions were not superseded nor repealed by Section 11, Art. 17, of the Constitution of the state, imposing upon the legislature the duty of providing reasonable regulations, by general law, for giving effect to the right of a corporation organized for such purpose to construct and maintain lines of telegraph within the state.</p> <p>3. While a common carrier may, in general, determine for himself the character and condition of what he will offer to and will carry, he cannot, by offering to carry under a qualified liability, constitute himself a common carrier with such liability only as he advertises to assume.</p> <p>4. A common carrier is under a legal duty to accept and carry whatever is offered to him, at a reasonable time and place, of a kind that he undertakes or is accustomed to carry, subject to the full liability of a common carrier, unless such liability is restricted by a valid agreement between such carrier and his employer.</p> <p>5. Such agreement, restrictihg the carrier’s liability except “as to the rate of hire, the time, place and manner of delivery,” can only be manifested by the signature of the passenger, consignor, consignee, or person employing such carrier. Section 3888, Comp. Laws.</p> <p>6. Such modification of the common carrier’s liability depends upon, and results from, the agreement of the parties, and the carrier cannot legally exact such agreement as a condition precedent to receiving or carrying the offered freight or message.</p> <p>7. As a common carrier a telegraph company cannot legally refuse to accept and transmit an offered message because the person offering will not sign an agreement that such carrier shall not be liable for damages in any case where the claim is not presented, in writing, within 60 days after