Klotz v. W. Union Tel. Co.

• Decision Date: 14 January 1920
• Docket Number: No. 32851.,32851.
• Citation: 175 N.W. 825,187 Iowa 1355
• Parties: KLOTZ v. WESTERN UNION TELEGRAPH CO.
• Court: Iowa Supreme Court

187 Iowa 1355

175 N.W. 825

KLOTZ

v.WESTERN UNION TELEGRAPH CO.

No. 32851.

Supreme Court of Iowa.

Jan. 14, 1920.

Appeal from District Court, Louisa County; Oscar Hale and James D. Smyth, Judges.

Action by a sendee to recover damages for a failure to deliver a telegram promptly. Opinion states the facts. Verdict and judgment for the plaintiff in the court below. Defendant appeals. Modified and affirmed.Carroll Bros., of Davenport, Arthur Springer, of Wapello, and Miller & Wallingford, of Des Moines, for appellant.

Molsberry & Reaney, of Columbus Junction, for appellee.

GAYNOR, J.

This action is brought by the sendee to recover for failure to deliver a telegram within a reasonable time after it was received by the company. The following is a copy of the telegram for the failure to deliver which within a reasonable time suit is brought:

“Have position for clarionetist with Arcadian Latest Singing Orchestra, 10 weeks tour, starting next Sunday Salary $30 per week solid time. Rehearsals in progress. Can you come first train. Wire answer quick.”

This telegram was delivered to the company in Chicago, Ill., at 10:30 p. m. on June 13, 1915, and, though transmitted to and received by its operator at Columbus Junction at 11 o'clock p. m., was not delivered to the plaintiff until 9 a. m. on June 14th. If the telegram had been delivered at once or within a reasonable time, the plaintiff, by exercising reasonable diligence on her part, might have taken trains for Chicago as follows: 2:19 a. m., 4:13 a. m., and 7:35 a. m., on the morning of June 14th, and could have advised Dunbar whether she would accept or not. It appears that as soon as she received the telegram, on the morning of the 14th, she wired Dunbar that she would be in Chicago on the 15th. This telegram seems to have been received by Dunbar too late, for in the meantime he had employed some one else to take the position offered the plaintiff.

The plaintiff in her petition claims that she would have accepted and secured the position if the telegram had been delivered within a reasonable time. She claims that she lost the position by reason of defendant's negligence in failing to deliver the telegram promptly, and claims damages in the sum of $325.

The defendant filed an answer to plaintiff's claim, denying generally, and alleging that on the back of the telegram was a written contract, limiting its liability to $50; that it had filed its tariff rates with the Interstate Commerce Commission, and these rates had been approved; that its messages were classified therein as messages valued at $50 and messages valued in excess of $50; that its tariff rates were based upon the value of the message so fixed; that when the value was more than $50 an additional charge was made.

This limitation of liability in the contract was based, and the contract made, on the understanding and agreement that the message did not exceed in value the sum fixed, and the charges paid for transmitting it were fixed by the value attached to the message; that the sender of the message fixed the value of the message at $50. The defendant pleaded this contract against the plaintiff as a partial defense, urging in its answer that the plaintiff, the sendee, was bound by this contract, and its right to recover limited by it, and urged that in no event could the plaintiff recover more than the value fixed in the contract.

The plaintiff demurred to this contention of the defendant, and the court sustained the demurrer, and submitted the case on the theory that the defendant was liable to the plaintiff, the sendee, for all damages which the plaintiff could show, followed as a proximate result of defendant's negligence, thus disregarding the limitation of the contract.

The jury returned a verdict for the plaintiff for $325. Judgment being entered upon the verdict, defendant appeals.

But one question is presented: Is the sendee bound by the value fixed on the message by the sender, and is the limitation on the amount to be recovered, for a failure to deliver the telegram within a reasonable time, binding on the sendee?

The federal government has assumed charge of the field of interstate commerce, and by the Act of Congress approved June 18, 1910 (U. S. Comp. St. § 8563 et seq.), has assumed charge of interstate commerce by telegraph, and thereby has removed and exempted the same from the field of state regulation or interference. Congress has conferred upon the Interstate Commerce Commission full power over rates, charges, facilities, classifications, and practices of telegraph companies engaged in interstate commerce, and has given to the Interstate Commerce Commission power to approve, alter, or acquiesce in existing rates or classifications. The defendant company filed its tariff rates with the Interstate Commerce Commission, and these had been approved by the Interstate Commerce Commission before and were in effect at the time the transaction herein took place.

Turning to the telegram, we find, preceding the written portion of the telegram, these words:

“Send the following telegram subject to the terms on the back hereof which are hereby agreed to.”

On the back appears:

“All telegrams taken by this company are subject to the following terms.”

Among these appear the following:

“In any event the company shall not be liable for damages for any mistakes or delays in the transmission or delivery, or for the nondelivery, of this telegram, whether caused by the negligence of its servants or otherwise, beyond the sum of fifty dollars, at which amount this telegram is hereby valued, unless a greater value is stated in writing hereon, at the time the telegram is offered to the company for transmission, and the additional sum paid or agreed to be paid based on such value.”

[1][2] That the regulation of interstate commerce by telegraph has been taken over and is exclusively within the jurisdiction of the federal law has been settled by the Supreme Court of the United States. It has been settled by that tribunal that a sender of a telegram is bound by the conditions and limitations in the telegram as to the amount for which the company shall be liable in case of a failure to exercise reasonable care in delivering the telegram. Primrose v. Western Union Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883, in which it was held that such a contract was not one exempting the company from liability for its negligence, but merely a reasonable condition, approximately adjusting the charge, for services rendered, to the duty and responsibility exacted for its performance. The doctrine of the Primrose Case, so far as it affects the question under consideration, has been recently reaffirmed in Postal Telegraph-Cable Co. v. Warren-Godwin Lumber Co., decided at the October term, 1919, of that court, 251 U. S. 27, 40 Sup. Ct. 69, 64 L. Ed. 118. The opinion was written by Chief Justice White. He said:

“In the first place, as it is apparent on the face of the act of 1910 that it was intended to control telegraph companies by the act to regulate commerce, we think it clear that the act of 1910 was designed to and did subject such companies as to their interstate business to the rule of equality and uniformity of rates which it was manifestly the dominant purpose of the act to regulate commerce to establish, a purpose which would be wholly destroyed if, as held by the court below, the validity of contracts made by telegraph companies as to their interstate commerce business continued to be subjected to the control of divergent, and it may be conflicting, local laws. In the second place, as in terms the act empowered telegraph companies to establish reasonable rates, subject to the control which the act to regulate commerce exerted, it follows that the power thus given, limited of course by such control, carried with it the primary authority to provide a rate for unrepeated telegrams and the right to fix a reasonable limitation of responsibility where such rate was charged, since, as pointed out in the Primrose Case, the right to contract on such subject was embraced within the grant of the primary rate-making power.”

Further he said:

“As the act expressly provided that the telegraph, telephone, or cable messages to which it related may be ‘classified into day, night, repeated, unrepeated, letter, commercial, press, government and such other classes as are just and reasonable and different rates may be charged for the different classes of messages,’ it would seem unmistakably to draw under the federal control the very power which the construction given below to the act necessarily excluded from such control. [As to construction given below, see Warren-Godwin Lumber Co. v. Postal Telegraph-Cable Co., 116 Miss. 660, 77 South. 601.] Indeed, the conclusive force of this view is made additionally cogent when it is considered that, as pointed out by the Interstate Commerce Commission (Cultra v. Western Union Tel. Co., 44 Interst. Com. Com'n R. 670), from the very inception of the telegraph business, or at least for a period of 40 years before 1910, the unrepeated message was one sent under a limited rate, and subject to a limited responsibility of the character of the one here in contest.”

It was there held that the act of Congress was an exertion by Congress of its authority to bring under federal control the interstate business of telegraph companies, and therefore was an occupation of the field by Congress which excluded state action.

Without repeating the reason upon which these decisions rest, we are bound by them. These two decisions hold that the sender of a telegram is bound by the limitation in the telegram as to the amount which he may recover for any dereliction of duty on the part of the company in sending the telegram. So we say that the only matter presented here for our consideration on this point is this: Is the sendee bound to the same extent that the sender is bound?

In the case last cited,...