Basila v. Western Union Telegraph Co., 226.

• Decision Date: 31 January 1928
• Docket Number: No. 226.,226.
• Citation: 24 F.2d 569
• Parties: BASILA v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. District Court — Southern District of Florida

24 F.2d 569 (1928)

BASILA v. WESTERN UNION TELEGRAPH CO.

No. 226.

District Court, S. D. Florida.

January 31, 1928.

Julian C. Ryer, of Miami, Fla., for plaintiff.

J. Julien Southerland, of Miami, Fla., for defendant.

CLAYTON, District Judge.

This action to recover $5,000 damages, brought in the circuit court of the eleventh judicial circuit of Florida, was removed by the defendant to this court.

The first count of the declaration is for a breach of contract; the other three being the common counts for money had and received. To each count the defendant pleaded the general issue; that the money in question was paid to the defendant under a contract which the defendant had fully performed; and, for a third plea, what is termed the connecting carrier defense. During the trial the plaintiff amended his declaration by inserting his claim for attorney's fee under the Florida statute.

In the stipulation by the parties jury trial was waived, and further, in accordance with the stipulation, I find the facts to be:

That on July 7, 1924, the plaintiff applied to the defendant at its office at Live Oak, Fla., to send the sum of $800 to one Yusuf Basila, at Saida, Syria, and then and there signed the defendant's standard application for such transfer of the money, and paid to the defendant in cash the sum of $800, and also the transmission charges, $16.49. That the application for this money transfer, which was signed by the plaintiff, contained among the provisions the following: "When the company has no office at destination authorized to pay money, it shall not be liable for any default beyond its own lines, but shall be the agent of the sender, without liability, and without further notice, to contract on the sender's behalf with any other telegraph or cable line, bank, or other medium, for the further transmission and final payment of this order." That on July 7, 1924, defendant transmitted by telegraph from its office at Live Oak, Fla., to its New York office, the money transfer order set out in the plaintiff's application. That the defendant did not have on July 7, 1924, and never has had, an office at Saida, Syria, authorized to pay money, and on the 7th day of July, 1924, the defendant at New York, N. Y., employed the American Express Company to transmit the said sum of $800 from New York, N. Y., to Saida, Syria, and there to pay it to the party designated by the plaintiff in the application for the money transfer, namely Yusuf Basila. The sum of $800 was not paid by the express company to the identical Yusuf Basila to whom the plaintiff intended it to be paid.

The evidence shows that, as the money order in question was filed at Live Oak, Fla., destined to Saida, Syria, and was handled by the defendant from the point of origin to New York, N. Y., it was interstate commerce, and that it was delivered by the defendant to the American Express Company at New York, N. Y., for transmission to Saida, Syria, and that such was a matter of foreign commerce. By the Act of June 18, 1910 (36 Stat. 539), amending the Interstate Commerce Act, telegraph companies were placed under the jurisdiction of the Interstate Commerce Commission with respect to their interstate and foreign business. As it was aptly said in the case of Gardner v. Western Union Telegraph Co. (C. C. A.) 231 F. 405: "Congress has taken possession of the field of interstate commerce by telegraph, and it results that the power of the states to legislate with reference thereto has been suspended."

Furthermore, Mr. Chief Justice White, speaking for the court, said, in the Western Union Tel. Co. v. Boegli, 251 U. S. 315, 40 S. Ct. 167, 64 L. Ed. 281:

"The proposition that the act of 1910 must be narrowly construed, so as to preserve the reserved power of the state over the subject in hand, although it is admitted that that power is in its nature federal, and may be exercised by the state only because of nonaction by Congress, is obviously too conflicting and unsound to require further notice. We therefore consider the statute in the light of its text, and, if there be ambiguity, of its context, in order to give effect to the intent of Congress as manifested in its enactment.

"As the result of doing so, we are of opinion that the provisions of the statute bringing telegraph companies under the act to regulate commerce as well as placing them under the administrative control of the Interstate Commerce Commission so clearly establish the purpose of Congress to subject such companies to a uniform national rule as to cause it to be certain that there was no room thereafter for the exercise by the several states of power to regulate, by penalizing the negligent failure to deliver promptly an interstate telegram, and that the court below erred, therefore, in imposing the penalty fixed by the state statute.

"We do not pursue the subject further, since the effect of the act of 1910 in taking possession of the field was recently determined in exact accordance with the conclusion we have just stated. Postal Telegraph Cable Co. v. Warren-Godwin Lumber Co., 251 U. S. 27, 40 S. Ct. 69, 64 L. Ed. 118. That case, indeed, was concerned only with the operation, after the passage of the act of 1910, of a state statute rendering illegal a clause of a contract for sending an interstate telegram limiting the amount of recovery under the conditions stated, in case of an un-unrepeated message; but the ruling that the effect of the act of 1910 was to exclude the possibility thereafter of applying the state law was rested, not alone upon the special provisions of the act of 1910 relating to unrepeated messages, but upon the necessary effect of the general provisions of that act bringing telegraph companies under the control of the interstate commerce act. The contention as to the continuance of state power here made is therefore adversely foreclosed."

Manifestly the statutes of Florida touching the matter of attorney's fees can have no application here. I think further comment on this proposition unnecessary.

Act June 29, 1906 (34 Stat. 595 49 USCA § 20, pars. 11, 12; Comp. St. §§ 8604a, 8604aa), called the Carmack Amendment to the Interstate Commerce Act, does not apply to telegraph companies. It is confined in its scope to "any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state, * * *" and holds the initial carrier for loss of property being transported, whether caused by the initial carrier or any subsequent common carrier, railroad, or transportation company. It is settled that the Carmack Amendment does not apply to telegraph companies. Merriweather v. Western Union Tel. Co., 183 Ky. 710, 210 S. W. 190; Western Union Tel. Co. v. Compton, 114 Ark. 193, 169 S. W. 946. And it is also well settled that the Carmack Amendment does not apply to foreign commerce, but relates only to property received for transportation from a point in one state to a point in another state. Houston E. & W. R. Co. v. Inman, 63 Tex. Civ. App. 556, 134 S. W. 275.

The defendant has pleaded what is known as the connecting carrier defense; that is to say, that the defendant having performed its full contract with the plaintiff, and having correctly transmitted the money order over defendant's lines, it having been necessary for the defendant to employ a connecting carrier for the further transmission and payment of the money order, there is no liability on the defendant, even at common law, in view of the fact that no default occurred on the defendant's lines. It was not shown, nor indeed has it been alleged, that the defendant was guilty of negligence in the selection of the agent to make further transmission of the money order beyond its terminus.

It is a familiar rule in the federal courts that, in the absence of a statute or contract, the liability of the initial carrier is for such default only as occurs on its own lines. "In most of the states, and in the federal courts, the English doctrine has been repudiated. Briefly stated, the rule formulated by the decisions of these courts is that, in the absence of any contract, usage, or statute to the contrary, or of any partnership agreement between connecting carriers or joint contract for transportation, the liability of the initial carrier notwithstanding the fact that the goods are marked to a point beyond its line, terminates when it transports the goods to the end of its line and delivers them to a connecting carrier to be transported to their destination." 10 C. J. p. 517, § 842.

And the same rule applies to telegraph companies. "In determining the duties and liabilities of connecting lines of telegraph companies, the courts are governed to a great extent by the principles applicable in the case of successive carriers of goods. Where a telegraph company receives a message to be transmitted to a point beyond its own line and on a connecting line, it undertakes for care and attention in transmitting it over its own line, and for its prompt delivery to a competent and responsible company for further transmission. When so delivered, its liability terminates, and that of the receiving company begins." 26 R. C. L. p. 558, § 63.

The pertinent...