Kirby v. Western Union Tel. Co.
| Decision Date | 05 July 1893 |
| Citation | 55 N.W. 759,4 S.D. 105 |
| Parties | JOE KIRBY, Plaintiff and respondent, v. WESTERN UNION TELEGRAPH CO., Defendant and appellant. |
| Court | South Dakota Supreme Court |
WESTERN UNION TELEGRAPH CO., Defendant and appellant. South Dakota Supreme Court Appeal from County Court, Minnehaha County, SD Hon. E. Parliman, Judge Affirmed Bailey & Voorhees, Sioux Falls, SD George H. Fearsons, of Counsel Attorneys for appellant. A. C. Boylan and Joe Kirby, Sioux Falls, SD Attorneys for respondent. Opinion filed July 5, 1893
On the 4th day of January, 1892, the respondent offered to the appellant, at its office in the city of Sioux Falls, a written message, confessedly unobjectionable in matter, and requested that it be transmitted in the usual way to the party to whom it was addressed, and then and there offered to pay the usual compensation therefor. The message was written on ordinary white writing paper. The company declined to send the same unless written upon, or attached to, one of its message blanks. This the respondent refused to do unless the stipulations contained in such message blank should be first erased, so that he would not be bound thereby. Under these circumstances the message was refused by the company. Upon these facts, which appear to be undisputed, respondent brought an action against the appellent company to recover actual damages, and $50 in addition thereto, under Section 3910, Comp. Laws. The Section reads as follows: “Every person whose message is refused or postponed, contrary to the provisions of this chapter, is entitled to recover from the carrier his actual damages, and fifty dollars in addition thereto.” Upon the trial the respondent proved his actual damages, and had a verdict for 25 cents actual and $50 statutory damages. Upon this verdict judgment was entered, a new trial refused, and the company appeals.
While other assignments of error, which will be hereafter noticed, were presented and argued, it is evident that the major question is the right of the appellant company to insist upon the message being received and sent subject to the stipulations contained in the message blank, and, if the person offering the message refuse to agree thereto, to decline to receive or transmit the same. If the law sustains the company’s right to so insist, or to refuse the message, then, upon the facts in this case, respondent should not have recovered, for it is uncontradicted that the message was refused upon the distinct ground that the respondent positively declined to have it sent subject to the stipulations printed upon the message blank.
By the statute law of this state, (Section 3881, Comp. Laws,) “every one who offers to the public to carry persons, property, or messages is a common carrier of whatever he thus offers to carry.” That the word “messages,” as here used, was intended to include telegraphic messages, is evident from the closely-following sections, wherein a “carrier by telegraph” and a “carrier of messages by telegraph” are expressly named, and their duties as such defined. From the adoption of the Civil Code, in 1872, until the legislative session of 1873-74, the State of California had the same statutory provisions, but at the session named the above-quoted section was amended by inserting an express exception of “telegraphic messages.” During the short time such original provision was there in force, we do not find any reported case in which it was considered. Prior to the adoption of such Code provision the supreme court of that state had held in Parks v. Telegraph Co., 13 Cal. 422, that the defendant company, as a general telegraph company, was a common carrier; but the decisions of the courts have been, with great unanimity, against this view, and under the amended statutes it is now so held in California. Hart v. Telegraph Co., 66 Cal. 579, 6 Pac. 637. Appellant, however, advances the proposition that these provisions of the old. Civil Code, being the sections of the Compiled Laws, above cited, which declare telegraph companies to be common carriers, are superceded and repealed by, because inconsistent with, the constitution. This contention is founded largely upon Section 11, Art. 17, of the constitution:
We think appellant claims too much for this section. It simply declares the right of an association, corporation, or individual to construct and maintain telegraph lines within this state, and to connect them with other lines, and then forbids the consolidation of competing lines. To carry into effect this general right to construct and maintain, and this prohibition against consolidation, the legislature is charged with the duty of providing suitable and reasonable laws and regulations, of uniform operation; regulations by and under which the right to construct and maintain may be used and exercised, and the prohibition of consolidation be enforced. We are not convinced that there is anything in the constitutional section which would forbid the legislature now, if it had never been done before, to impose upon telegraph companies the character and duties of common carriers. But, even if we understand this constitutional section to mean that the legislature should provide reasonable regulations for the conduct of the current business of telegraph companies, we should not think it had the retroactive effect of repealing former legislation, even though assailed as unreasonable. It is a general rule that neither constitutions nor statutes should be so construed as to have a retroactive effect, unless such intention is clearly expressed. Cutting v. Taylor,(1892); Cooley Const. Lim. pp. 62, 63; Suth. St. Const. 463, 464; Allbyer v. State, 10 Ohio St. 589; People v. Gardner, 59 Barb. 198; Ex parte Burke, 59 Cal. 6. Although peculiar to our state, and the statute itself an exceptional one, I think we must recognize its effect to be to make, in this jurisdiction, a telegraph company a common carrier of whatever it thus offers to carry,” and its duty to receive and transmit respondent’s message must be tested by its rights and duties as a common carrier. An individual or corporation becomes a common carrier of just what it offers to carry. Its duty to the public springs from its offer to the public, and must be measured by it; so that the carrier who only offers to carry grain in canvas sacks cannot be required to carry grain in bulk. But while the carrier may thus, in general, determine for himself the character and condition of what he will carry, he cannot, by offering to carry for the public under a qualified liability, constitute himself a common carrier with such a liability, only, as he advertises to assume. As a common carrier it was appellant’s legal duty, if able to do so, to accept and transmit respondent’s message, if offered at a reasonable time and place, and if it was of a kind that it undertook or was accustomed to carry. Section 3882, Comp. Laws. The ability of appellant to receive and transmit the message; that it was offered at a reasonable time and place; and that the message itself, except as to the paper on which it was written, was of a kind that it was accustomed to carry, are not disputed.
The dominant question in this case, upon the merits, being whether the stipulations upon the message blank, or any of them, so far restricted appellant’s liability as a common carrier as to justify respondent’s refusal to consent to them, as a condition of having his message accepted and sent by appellant, we have thought it just to both parties to examine them severally, expressing our opinion upon each, so far as they are involved by the facts in this case. It is not claimed that either of the regulations or stipulations printed upon the message blank, and which respondent was required to assent to, offended against the rule of impartiality, which appellant, as a common carrier, was bound to observe. Respondent, however, strenuously insists that the stipulation on the printed blank would, if assented to by him, have the effect of relieving the company from a liability imposed upon it by law, as a common carrier, and consequently he ought not to be compelled to agree to it, as a condition of having his message sent.
The first matter objected to is as follows: So much is only explanatory and advisory. Then follows: “It is agreed between the sender of the following message, and the company, that said company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for nondelivery, of any repeated message, beyond fifty times the sum received for sending the same, unless specially insured, nor, in any case from unavoidable interruption in the working of its lines, or for errors in cypher or obscure messages.” Then follows the rates for sending insured messages. The order in which the rates, terms, and conditions are stated upon which the company would receive and transmit this message are, of course, not important. The essential thing to know is, did they tally with the duty of the company, as a common carrier. As such common carrier, it must...
To continue reading
Request your trial