Robert Gibb & Sons, Inc. v. Western U. Tel. Co.

• Decision Date: 08 March 1977
• Docket Number: No. A2-76-37.,A2-76-37.
• Citation: 428 F. Supp. 140
• Parties: ROBERT GIBB & SONS, INC., a North Dakota Corporation, Plaintiff, v. WESTERN UNION TELEGRAPH COMPANY, a New York Corporation, Defendant.
• Court: U.S. District Court — District of South Dakota

428 F. Supp. 140

ROBERT GIBB & SONS, INC., a North Dakota Corporation, Plaintiff, v. WESTERN UNION TELEGRAPH COMPANY, a New York Corporation, Defendant.

No. A2-76-37.

United States District Court, D. North Dakota, Southeastern Division.

March 8, 1977.

Thomas C. Wold, Pancratz, Wold & Johnson, P. C., Fargo, N. D., for plaintiff.

E. T. Conmy, Jr., Conmy, Feste & Bossart, Ltd., Fargo, N. D., for defendant.

MEMORANDUM OF DECISION AND ORDER

BENSON, Chief Judge.

Robert Gibb and Sons, Inc., a North Dakota corporation, Plaintiff, initiated this action alleging it sustained damages of loss of profits in the amount of $115,000 caused by the delay in transmitting two telegrams over Defendant's facilities from Fargo, North Dakota to Bismarck, North Dakota, concerning bids on the plumbing, heating and ventilation of a building at the State Capitol. Jurisdiction was alleged to exist under 28 U.S.C. § 1332 based on diversity of citizenship between the parties and an amount in controversy exceeding $10,000. Thereafter, Defendant moved to dismiss on the ground that, to a legal certainty, the requisite jurisdictional minimum of $10,000 was absent.

Defendant contends that jurisdictional amount in controversy is absent because a tariff filed with the North Dakota Public Service Commission (PSC) limits liability on messages of this type to $500 for each telegram, for a total of $1,000 in this case.¹

Plaintiff contends the jurisdictional minimum exists because: (1) NDCC § 8-10-04 controls in this case and that section allows Plaintiff to recover the full amount alleged in the complaint; and (2) the tariff schedule limiting liability to $500 for each telegram is invalid for failure to comply with the statutory requirements for enacting tariff schedules.

The parties agree that the messages sent are properly designated "unrepeated." The parties have submitted the Tariff Regulations filed by Defendant with the Public Service Commission, approved by it and which were in effect at all relevant times material to this case, and which provide in part:

"I. CONDITIONS

The following are the classifications and conditions under which messages will be accepted for transmission:

To guard against mistake or delays, the sender of a message should order it repeated, that is, telegraphed back to the originating office for comparison. For this, one-half the unrepeated message rate is charged in addition. Unless otherwise indicated on its face, this is an unrepeated message and paid for as such, in consideration whereof it is agreed between the sender of the message and the Telegraph Company as follows:

1. The Telegraph Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of any message received for transmission at the unrepeated-message rate beyond the sum of five hundred dollars; nor for mistake or delays in the transmission or delivery, or for non-delivery, of any message received for transmission at the repeated-message rate beyond the sum of five thousand dollars, unless specially valued; nor in any case for delays arising from unavoidable interruption in the working of its lines.

2. In any event the Telegraph Company shall not be liable for damages for mistakes or delays in the transmission or delivery, or for the non-delivery, of any message, whether caused by the negligence of its servants or otherwise, beyond the actual loss, not exceeding in any event the sum of five thousand dollars, at which amount the sender of each message represents that the message is valued, unless a greater value is stated in writing by the sender thereof at the time the message is tendered for transmission, and unless the repeated-message rate is paid or agreed to be paid and an additional charge equal to one-tenth of one per cent of the amount by which such valuation shall exceed five thousand dollars.

3. The Telegraph Company is hereby made the agent of the sender, without liability, to forward this message over the lines of any other company when necessary to reach its destination."

The parties have stipulated that the transmissions in this case were intrastate in nature thus requiring the court to look to tariff schedules on file and approved by the North Dakota PSC and state law for determination of the issues in this case, rather than the federal law. See 47 U.S.C. § 153(e)(3).

Defendant is willing to assume that the tariff in question was adopted by the PSC without prior public notice or hearings and without submitting to the PSC the information listed in NDCC § 49-05-04. Defendant contends, however, that prior notice or hearings and submitting information as required by § 49-05-04 were not required.

Defendant initially filed tariffs with the PSC pursuant to NDCC § 49-21-04.

NDCC § 49-21-04 provides:

"The commission shall require each telephone company, within such time as it shall fix and in such form and detail as it may require, to file with the commission:

1. Schedules showing all rates and charges which are established and in effect at the time for any service rendered to the public by such telephone company within this state; and

2. All rules and regulations which in any manner affect the rates charged or to be charged for such service,

and such telephone company shall not make any changes thereafter in said schedule, rates, or charges other than those named in such schedule without first securing the consent of the commission."

Thereafter, changes to the original tariffs are made by the Defendant pursuant to NDCC § 49-05-05, which provides:

"No change shall be made by any public utility in any tariffs, rates, joint rates, fares, tolls, schedules, classifications, or service which have been filed and published by any public utility, except after thirty days' notice to the commission. Such notice shall state plainly the changes proposed. The commission for a good cause shown, may allow changes upon less than the notice herein specified, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions."

Under § 49-05-05, unless the PSC suspends within thirty days a rate change filed with it, the change automatically goes into effect as the established and effective rate "subject to the power of the commission, after a hearing had on its own motion or upon complaint, to alter or modify the same." Prior notice, other than as was given in this case, prior hearings and the submission of information under § 49-05-04 were not required in this case and are therefore not applicable. Based on the foregoing, the court concludes Plaintiff's contention that the tariff is invalid for failure to comply with statutory requirements is without merit.

Plaintiff also contends this court properly has jurisdiction under 28 U.S.C. § 1332 because the tariff limiting liability is contrary to NDCC § 8-10-04. The latter section provides:

"Every person whose message is refused, postponed, or delayed contrary to the provisions of sections 8-10-02 and 8-10-03 is entitled to recover from the carrier his actual damages and additional damages for mental distress and anguish caused by the refusal, delay or postponement."²

There is no factual dispute that the telegrams were delayed. The parties disagree, however, over whether § 8-10-04 controls the damage issue or whether the tariff limits liability to $1,000. This question appears to be a matter of first impression in North Dakota and must be decided according to what this court concludes would be the decision of the Supreme Court of the State of North Dakota or what the law is as declared by its Legislature. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

The law is settled, with regard to interstate transmission, that tariff provisions limiting liability are binding on all parties and have the force of law irrespective of their knowledge or notice thereof and irrespective of whether the message is filed on a regular blank, on a blank piece of paper, over the telephone, or in some other manner. Western Union Telegraph Company v. Esteve Bros., 256 U.S. 566, 41 S.Ct. 584, 65 L.Ed. 1094 (1921); Postal Telegraph Cable Company v. Warren-Godwin Lumber Company, 251 U.S. 27, 40 S.Ct. 69, 64 L.Ed. 118 (1919); Komatz Construction, Inc. v. Western Union Telegraph Company, 290 Minn. 129, 186 N.W.2d 691 (1971); Dowling v. Western Union Telegraph Company, 92 F.2d 864 (1st Cir. 1937); Schaafs v. Western Union Telegraph Company, 215 F.Supp. 419 (E.D.Wis.1963); Lundgren v. Western Union Telegraph Company, 132 F.Supp. 933 (D.Ore.1955). Intrastate transmissions, however, are governed by state laws and regulations if such transmissions are governed by a state regulatory commission. 47 U.S.C. § 153(e)(3).

Absent § 8-10-04, it is settled the limitation of liability provision would be the law and "an inherent part of the rate. The telegraph company could no more depart from it than it could depart from the amount charged for...