Kirsch v. The Postal Telegraph Cable Company

• Decision Date: 07 April 1917
• Docket Number: 20,572
• Citation: 100 Kan. 250,164 P. 267
• Parties: WILLIAM J. KIRSCH, Appellee, v. THE POSTAL TELEGRAPH CABLE COMPANY, Appellant
• Court: Kansas Supreme Court

164 P. 267

100 Kan. 250

WILLIAM J. KIRSCH, Appellee, v. THE POSTAL TELEGRAPH CABLE COMPANY, Appellant

No. 20,572

Supreme Court of Kansas

April 7, 1917

Decided January, 1917.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. TELEGRAM--Nondelivery--Negligence--Contract Limiting Liability for Damages--Valid. Under the Carmack amendment (Part 1, 36 U.S. Stat. at Large, ch. 309) an interstate telegraph company may by contract limit its liability for nondelivery of an unrepeated message to the amount paid for its transmission even in case of gross negligence.

2. SAME--Negligence of Connecting Carrier. The initial carrier is liable for the negligence of any of its connecting carriers.

David Ritchie, G. A. Spencer, both of Salina, and W. W. Cook, of New York, N. Y., for the appellant.

Frank T. Knittle, and Thomas L. Bond, both of Salina, for the appellee.

West J. Dawson J. concurring specially.

OPINION

WEST, J.:

The petition alleged, among other things, that the plaintiff entered into a contract by which for fifty-five cents paid the defendant the latter agreed to transmit a certain message without unnecessary delay. That the defendant "recklessly, maliciously, carelessly, wantonly and with total and entire disregard of the rights of the plaintiff, failed, neglected and refused to deliver said message . . . or to make any effort to do so, and failed, neglected and refused to transmit said message . . . and never at any time attempted to comply with its agreement to transmit and deliver said message as aforesaid." The answer averred among other things that the message was written on a blank, a copy of which was attached, containing a provision on its face as follows: "Send the following message, without repeating, subject to the terms and conditions printed on the back hereof which are hereby agreed to"; that this provision was signed by the plaintiff and made a valid contract; that on the back was a statement that it was agreed that the company should no be liable for "mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message, beyond the amount received for sending same"; that the message in question was an unrepeated one and no toll was charged except for such a message. Also that the blank contained a provision that the company "is hereby made the agent of the sender without liability to forward any message over the lines of any other company when necessary to reach its destination," and that the message in question was correctly transmitted to the Postal Telegraph Cable Company of Missouri, and if any negligence occurred it was not on the lines or in the office of the defendant.

To these defenses the plaintiff demurred. The court sustained the demurrers and the defendant appeals.

The Carmack amendment of June 18, 1910 (Part 1, 36 U.S. Stat. at Large, ch. 309, pp. 539, 544), is invoked. In Bailey v. Telegraph Co., 97 Kan. 619, 156 P. 716, it was said:

"By this act interstate commerce in telegraph messages is placed under the control of the interstate commerce commission. Under this act, common carriers of interstate commerce may limit the amount of the recovery on account of damage inflicted to the property of a shipper by the carrier's negligence, and these limitations have been held valid and binding. (Kirby v. Railroad Co., 94 Kan. 485, 146 P. 1183, and cases there cited; Horse & Mule Co. v. Railway Co., 95 Kan. 681, 683, 149 P. 436; Ray v. Railway Co., 96 Kan. 8, 149 P. 397.) The rules that justify common carriers of interstate commerce in limiting their liability for their negligence also justify interstate carriers of telegraph messages in limiting their liability for their negligence." (p. 623.) (See opinion denying rehearing, 99 Kan. 7.)

In the Bailey case the petition alleged gross negligence and prayed for exemplary damages. The decision therein, together with the authorities cited, settled the rule in this state that under the Carmack amendment a contract limiting the liability of the carrying company is to be upheld whether the negligence be ordinary or gross.

That the initial carrier is responsible for the nondelivery appears from the language of the Carmack amendment itself and has been repeatedly announced by the federal supreme court. In Atlantic Coast Line v. Riverside Mills, 219 U.S. 186, 55 L.Ed. 167, 31 S.Ct. 164, it was said:

"Reduced to final results, the Congress has said that a receiving carrier, in spite of any stipulation to the contrary, shall be deemed, when it receives property in one State to be transported to a point in another involving the use of a connecting carrier for some part of the way, to have adopted such other carrier as its agent, and to incur carrier liability throughout the entire route, with the right to reimbursement for a loss not due to his own negligence." (p. 205.)

In Kansas Southern Ry. v. Carl, 227 U.S. 639, 57 L.Ed 683, 33 S.Ct. 391, in speaking of the Hepburn act it was said: "The express terms of the act make the carrier liable for any loss caused by it, and provides that no contract shall exempt it from the liability imposed." (p. 647.) In Norfolk & W. Ry. Co. v. Dixie Tobacco Co., 228 U.S. 593, 57 L.Ed. 980, 33 S.Ct. 609, it was held that stipulations in a bill of lading for interstate shipment that no carrier shall be liable for damages not occurring on its portion of the through route, are void. And that the initial carrier is liable whether the ...